Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability to Buyer or any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties or covenants of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 or in this Section 9.4) the total of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount of the Deductible, but subject to the Seller Liability Cap (defined below). Known Matters of which Buyer is actually aware or of which it has received written notice prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or as of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closing.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (CNL Lifestyle Properties Inc), Purchase and Sale Agreement (Senior Housing Properties Trust)
Limitation on Claims. Notwithstanding any provision None of this Agreement the Buyer Indemnified Parties shall be entitled to the contrary, no Seller shall have any liability to Buyer seek recovery of Losses under clause (i) or any clause (iv) of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability to Buyer or any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties or covenants of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, Section 8.2(a) unless and until (Buyer has paid or incurred Losses in addition to the other limitations set forth in Section 9.3 or in this Section 9.4) the total excess of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) 500,000 in the aggregate (the “DeductibleBasket Amount”), in which case Buyer shall be entitled to recover all Losses so identified including the Basket Amount up to a maximum of Six Million Two Hundred Thousand Dollars ($6,200,000) (the “Rep Indemnity Cap”); provided, however, if such Claims that neither the Basket Amount nor the Rep Indemnity Cap shall apply to any claims for Losses made by Buyer under clause (i) of Section 8.2(a) with respect to any breaches or inaccuracies of an Unlimited Representation and liabilities exceed the Deductible, then Sellers Buyer shall be liable entitled to indemnity for all such Claims and liabilities, including the amount of the Deductible, but subject its Losses resulting from any breach or inaccuracy of an Unlimited Representation without regard to the Seller Liability Cap (defined below)Basket Amount or the Rep Indemnity Cap. Known Matters For purposes of which Buyer is actually aware or of which it has received written notice prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or as of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoingclarity, in no event shall the Basket Amount or Rep Indemnity Cap limit any party’s rights or obligations under any of the Collateral Agreements. All Losses shall be determined net of any insurance proceeds actually recovered (aso long as recovered within three years after the applicable Losses are incurred) by the Deductible Indemnified Party with respect to the matter for which the Losses relate, and each Indemnified Party shall be obligated to use its commercially reasonable efforts to collect the maximum amount of any such available insurance proceeds. If any insurance recoveries are received by the Indemnified Party that are related to a matter for which Losses have been paid to the Indemnified Party by the Indemnifying Party (or from the Seller Liability Cap apply escrow account referred to any post-Closing adjustments pursuant to Section 5.5(k); and (bArticle VII) the Deductibleunder this Agreement, the Seller Liability Cap Indemnified Party will pay such proceeds to the Indemnifying Party (or back into the Survival Period limit escrow account) to the extent such proceeds reduce the amount of Losses sustained by the Indemnified Party with respect to such matter and for which the Indemnified Party has been indemnified by the Indemnifying Party together with all remaining aggregate Losses of the Indemnified Party if, after taking into consideration of the insurance recovery, the Indemnified Party’s aggregate Losses for which it has been indemnified hereunder plus any Losses for which it has asserted a claim for indemnity hereunder but which have not been paid because such claim is in dispute (a “Disputed Indemnity Claims”) are less than the Basket Amount; provided, however, if such aggregate amount is above the Basket Amount but if the amount of the Disputed Indemnity Claims or liabilities arising out were disregarded then the aggregate amount would be below the Basket Amount, the amount of any fraud the aggregate Losses without the Disputed Indemnity Claims shall be paid by any Seller. The provisions Buyer into the escrow account established under the Escrow Agreement and such funds shall be considered part of this Section 9.4 shall survive Closingthe escrowed funds thereunder.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (NightHawk Radiology Holdings Inc)
Limitation on Claims. Notwithstanding any provision 11.1 For the purposes of this Agreement clause 11 any reference to "the contrarySeller" shall, no where the Warranty Claim relates to a Warranty given in Part B of Schedule 4, be deemed to read "the Seller shall have any liability to Buyer or any of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms of this Agreement, Buyer agrees that Sellers BUK".
11.2 The Seller shall have no liability to Buyer or in respect of any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties of the Warranties (other than the Tax Warranties) unless the Purchaser has served on the Seller a written notice in accordance with this Agreement on or covenants before 30 June 2003 giving such details of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to claim as the other limitations set forth in Section 9.3 or in this Section 9.4) Purchaser then has including the total Purchaser's then best estimate of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount of the Deductible, but subject to liability of the Seller Liability Cap (defined below). Known Matters in respect thereof.
11.3 The Seller shall have no liability in respect of which Buyer is actually aware or any breach of which it any of the Tax Warranties unless the Purchaser has received served on the Seller a written notice in accordance with this Agreement on or before the seventh anniversary of Asset Completion giving such details of the claim as the Purchaser then has including the Purchaser's then best estimate of the amount of the liability of the Seller in respect thereof.
11.4 Where, in relation to a claim for breach of the Warranties which has been notified in writing prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) date relevant thereto under clause 11.2 or prior to or as of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms 11.3 of this Agreement (as appropriate), proceedings are not instituted (that is to say issued and served) within six months of the service of the notice in question (unless previously satisfied, settled or withdrawn) the Seller shall cease to be liable therefor.
11.5 Where a claim is made in respect of a contingent liability, the Seller shall, notwithstanding clauses 11.2 and 11.3, be liable for such claim if and when it becomes an actual liability if the requisite details of such claim have been delivered in accordance with clause 11.2 or 11.3 (as the case may be), even if such liability does not become an actual liability until after the expiry of the relevant time period set out in clause 11.2 or 11.3 (as the case may be).
11.6 No claim shall be made in respect of any breach of any of the Warranties (a "Warranty Claim"):
(a) where the liability for any particular claim (or what would be such liability apart from this paragraph) is less than(pound)30,000 ("de minimis claims"); and
(b) unless the aggregate amount of all such claims exceeds (pound)200,000 PROVIDED that if such aggregate amount does exceed (pound)200,000 the Seller's liability shall not be limited to the excess and the whole amount shall be recoverable in full, excluding for the avoidance of doubt, de minimis claims.
11.7 No claim shall be made in respect of any breach of the Tax Covenant:
(a) where the liability for any particular claim (or what would be such liability apart from this paragraph) is less than(pound)10,000 ("de minimis tax claims"); and
(b) unless the aggregate amount of all such claims exceeds (pound)30,000 PROVIDED that if such aggregate amount does exceed (pound)30,000 the Seller's liability shall not be limited to the excess and the whole amount shall be recoverable in full, excluding for the avoidance of doubt, de minimis tax claims.
11.8 The maximum aggregate amount recoverable by the Purchaser under the Warranties, the Indemnities, this Agreement and the Tax Covenant shall be limited to and in any event not exceed an amount equal to the Consideration.
11.9 The Seller shall not be liable in respect of any Warranty Claim if and to the extent that the loss occasioned thereby has been recovered under the Tax Covenant or under an earlier Warranty Claim.
11.10 Upon the Seller becoming aware of any matter, claim, action or demand which could give rise to a Warranty Claim or any matter which may give rise to such a claim, action or demand, the Seller shall and shall procure that the relevant member of the Seller's Group shall as soon as reasonably practicable notify the Purchaser by written notice of such fact.
11.11 The Seller shall not be liable in respect of any Warranty Claim in relation to Intellectual Property or Information Technology unless the Warranty Claim arises as a result of a breach of a Warranty contained in paragraph L of Part A of Schedule 4 or paragraph I of Part B of Schedule 4.
11.12 The Purchaser will not and nor will any member of the Group make any admission of liability, agreement or compromise with any person, body or authority in relation to any matter in respect of which a claim under the Warranties (other than a claim under the Tax Warranties) may arise without prior agreement in writing (such agreement not to be unreasonably withheld or delayed) of the Seller breachand shall give the Seller and its professional advisers such reasonable access to such documents and records as are relevant to such claim within the power, possession or control of the Purchaser or the Group as the Seller shall reasonably request in writing to enable the Seller and his professional advisers to examine (but not copy without the consent of the Purchaser) such documents and records provided that the Purchaser shall be fully indemnified and, if reasonable in the circumstances of the Seller existing at such time, secured to the Purchaser's reasonable satisfaction, by the Seller as to all costs and expenses which they may reasonably incur by reason of such action.
11.13 The Purchaser shall, or shall procure that the relevant members of the Group shall, take such action as the Seller may reasonably request in writing to avoid, dispute, resist, appeal, delay, compromise, defend or mitigate any claim, action or demand which could give rise to a Warranty Claim (other than a claim under the Tax Warranties) or any matter which may give rise to such a claim, action or demand provided that the Purchaser and the relevant member of the Group (as the case may be) shall not form be fully indemnified and, if reasonable in the basis circumstances of the Seller existing at such time, secured to the Purchaser's reasonable satisfaction, by the Seller as to all costs and expenses which it may reasonably incur by reason of such action.
11.14 In the event of any claim by the Purchaser pursuant to the Warranties or the Tax Covenant succeeding or being agreed and any payment being paid by the Seller pursuant to such claim the Consideration paid by the Purchaser under this Agreement in respect of the Shares or the Assets and Business (as the case may be) shall be deemed to have been reduced by an amount equal to the amount of such payment, and such reduction shall be applied to the Shares or Assets and Business sold by the Seller or BUK (as the case may be) in accordance with the amounts of such liability discharged by them.
11.15 In calculating the liability of the Seller for any breach of the Warranties (other than a claim under the Tax Warranties) there shall be taken into account the amount by which any taxation for which any member of the Group has been reduced or extinguished as a result of the matter giving rise to such liability.
11.16 If, in respect of any matter which would give rise to a breach of the Warranties (other than the Tax Warranties) any member of what was the Group at Completion would be able to validly claim under any policy of insurance existing prior to Completion (or any run-off insurance purchased following the Completion), then no such matter shall be the subject of a Warranty Claim (other than a claim under the Tax Warranties) unless and until the appropriate member of the Group shall have made a claim against its insurers and any such insurance claim (if successful) and net of any costs and any liability to Tax on any amount recovered) shall then reduce by the amount recovered or extinguish to the extent of any amount recovered any such claims for breach of such Warranties.
11.17 If the Seller pays at any time to the Purchaser or the relevant member of the Group an amount pursuant to a Warranty Claim (other than a claim under the Tax Warranties) and the Seller or the relevant member of the Group subsequently becomes entitled to recover from some other person any sum in respect of any matter giving rise to such claim, the Purchaser shall, and shall procure that the relevant member of the Group shall, take all reasonable steps to enforce such recovery, and shall forthwith repay to the Seller so much of the amount paid by the Seller to the Purchaser or the relevant member of the Group as does not exceed the sum recovered from such other person less all reasonable costs, charges and expenses incurred by the Purchaser or the relevant member of the Group recovering that sum from such other person and any liability to Tax on any amount recovered.
11.18 No Warranty Claim shall lie against the Seller under the Warranties (other than a claim under the Tax Warranties) to the extent that such Warranty Claim is wholly or partly attributable to:
(a) any voluntary act, omission, transaction or arrangement carried out at the request of or with the written consent of the Purchaser prior to Share Completion and/or Asset Completion (as the case may be) excluding where the same is conducted in relation to the Group Debt Restructuring; or
(b) any voluntary act, omission, transaction or arrangement carried out by the Purchaser or a member of the Group or on their behalf on or after Share Completion and/or Asset Completion (as the case may be) other than in the ordinary course of the Business or the business of any Group member (which for the avoidance of doubt shall mean in substantially the same manner as the Business or the business of the relevant Group member was conducted in the six months immediately prior to the date of this Agreement) and other than any act, omission, transaction or arrangement carried out pursuant to this Agreement;
(c) any actions or omissions approved pursuant to an Integration Committee Minute.
11.19 No matter shall be the subject of a Warranty Claim (other than a claim under the Tax Warranties) to the extent that allowance, provision or reserve in respect of such matter shall have been made in the Completion Accounts expressly and specifically.
11.20 The liability of the Seller pursuant to the Tax Warranties shall be subject to the limitations, exceptions and qualifications set out in clauses 3, 5 and 9 of the Tax Covenant so that the Seller shall not be counted in determining whether liable for any claim made pursuant to the Deductible has been reached. In no event shall any party Tax Warranties if (or to the extent that) they would not be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising such claim if the Tax Warranties in question had been set out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under Tax Covenant as matters in respect of which the Purchaser was indemnified.
11.21 The limitations on the Seller's liability set out in this Section 9.4 clause 11 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) Warranty Claim or any claim under the Deductible, Tax Covenant if such a claim involves fraud or wilful dishonesty on the Seller Liability Cap or part of the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closing.
Appears in 1 contract
Samples: Master Sale and Purchase Agreement (Baltimore Technologies PLC)
Limitation on Claims. Notwithstanding any provision of No claims shall be payable under this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliates, SECTION 9 with respect to any Claims based on Known Matters Damages unless and until the aggregate Damages owing under this SECTION 9 in respect of any Indemnitee (as defined below) exceed $100,000, in which Buyer has actual knowledge case the Indemnitee shall be entitled to indemnification from the indemnifying party for all Damages without regard to such threshold. As used herein, an "INDEMNITEE" means one or written notice prior more of the AIC Indemnified Parties or the Xtrana Indemnified Parties to the Effective Dateextent that such parties seek indemnification from the other pursuant to this SECTION 9. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, The Xtrana Indemnified Parties' sole and nevertheless proceeds to Closing despite the ability to terminate exclusive remedy for indemnification claims against AIC under this Agreement shall consist of its right to set off any Damages against the Holdback Shares and the AIC Indemnified Parties' sole and exclusive remedy for indemnification claims against Xtrana under this Agreement shall consist of their right to receive additional shares of Xtrana Common Stock out of the AIC Indemnification Shares, in either case pursuant to the procedure described in SECTION 9.5 hereof. No claims shall be payable with respect to any representation or warranty unless such claim is asserted in writing on or before 5:00 p.m. Pacific Standard Time on March 31, 2006 (the "INDEMNIFICATION TERMINATION PERIOD"). All Holdback Shares not then subject to indemnification claims under SECTION 9.3.2 hereof shall be released to the AIC's pre-Merger shareholders pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability the Escrow Agreement upon the expiration of the Indemnification Termination Period. All AIC Indemnification Shares not then subject to Buyer or any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties or covenants of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 or in this Section 9.4) the total of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers indemnification claims under SECTION 9.3.1 hereof shall be liable for all such Claims released from escrow and liabilities, including the amount of the Deductible, but subject to the Seller Liability Cap (defined below). Known Matters of which Buyer is actually aware or of which it has received written notice prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or as of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement permanently cancelled pursuant to the terms Escrow Agreement upon the expiration of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive ClosingIndemnification Termination Period."
Appears in 1 contract
Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability to Buyer or any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties or covenants of Sellers, the Sellers shall 6.1 The Vendor will not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 or in this Section 9.4) the total of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including any Relevant Claim unless:
6.1.1 the amount of the Deductible, but subject liability in respect of that Relevant Claim or the aggregate amount of the liability in respect of a number of Relevant Claims relating to the Seller Liability Cap same matter exceeds (defined belowpound)5,000 AND the amount of the liability in respect of that Relevant Claim or Relevant Claims when aggregated with the amount of the liability in respect of all other Relevant Claims exceeds (pound)750,000 (in which event the Vendor will be liable for the whole amount of such Relevant Claims and not merely the excess). Known Matters of which Buyer is actually aware or of which it has received ; and
6.1.2 the Vendor receives from the Purchaser written notice prior to of the Effective Date Relevant Claim (stating in reasonable detail the nature of the Relevant Claim and including so far as reasonably practicable an estimate of the maximum amount of the Relevant Claim):
6.1.2.1 no later than 30 April 2006, in the event Buyer elects to not proceed to Closing due to case of a Relevant Claim for breach by Seller) or prior to or as of any of the Closing Date (Warranties contained in SCHEDULE 3; and
6.1.2.2 within seven years after Completion, in the event Buyer elects to close notwithstanding case of a Relevant Claim for breach of any of the Warranties contained in SCHEDULE 4. PROVIDED THAT unless the parties are conducting bona fide negotiations in respect of such Seller breach despite Relevant Claim the ability to terminate this Agreement liability of the Vendor against which any Relevant Claim specified in such notice shall have been made shall absolutely determine and cease (if such Relevant Claim has not been previously satisfied, settled or withdrawn) if legal proceedings in respect of the claim shall not have been commenced against the Vendor by being both properly issued and validly served on the Vendor within twelve months of the giving of such notice.
6.2 The aggregate amount of the liability of the Vendor for all Relevant Claims and any claims made pursuant to the terms of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall Tax Schedule will not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (an amount equal to the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive ClosingConsideration.
Appears in 1 contract
Samples: Share Purchase Agreement (Cash America International Inc)
Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no 6.1 The Seller shall have any liability to Buyer or any of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability to Buyer in respect of any breach or non- fulfilment:
(a) of any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers the General Warranties, unless the Purchaser has served on the Seller a breach written notice on or before 1 May 2002; or
(b) of any representations, warranties or covenants of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewithTax Warranties, unless and until (the Purchaser has served on the Seller a written notice on or before the seventh anniversary of the date of Completion in addition to each case giving such details of the other limitations set forth in Section 9.3 or in this Section 9.4) claim as the total Purchaser then has including the Purchaser's then best estimate of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount of the DeductibleSeller's liability in respect thereof.
6.2 No claim shall be made in respect of any breach of any of the Warranties (a "Warranty Claim") unless the aggregate amount of all such claims exceeds (Pounds)75,000 PROVIDED that if such aggregate amount does exceed (Pounds)75,000, but subject the Seller's liability shall not be limited to the excess and the whole amount shall be recoverable in full.
6.3 The Seller Liability Cap shall not be liable for any individual Warranty Claim unless the liability of the Seller in the respect of such claim exceeds (defined below). Known Matters Pounds)25,000.
6.4 The total amount of which Buyer is actually aware or the Seller's liability in respect of which it has received written notice prior all Warranty Claims shall be limited to and in no event exceed US$1,750,000.
6.5 The limitations on the liability of the Seller set out in this clause 6 shall not apply to any Warranty Claim if the claim involves any fraud on the part of the Seller.
6.6 No Warranty Claim shall be made by the Purchaser if and to the Effective Date extent that the matter giving rise to the Warranty Claim has been fairly disclosed:
(a) in this Agreement; or
(b) by the Disclosure Letter; or
(c) in the event Buyer elects information contained in the Disclosure Files.
6.7 The Seller shall not be liable in respect of any Warranty Claim or claim under the Tax Covenant if and to the extent that the loss occasioned thereby has been recovered under an earlier Warranty Claim or claim under the Tax Covenant.
6.8 The Seller shall not proceed to Closing due to be liable in respect of any Warranty Claim or claim under the Tax Covenant in respect of any matter resulting from a breach by Seller) change of accounting policy or prior to or as practice of the Closing Date (Purchaser or the Company introduced after Completion.
6.9 The Seller shall not be liable in respect of any Warranty Claim or claim under the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant Tax Covenant to the terms of this Agreement extent that any such claim arises or is increased as a result of:
(a) any increase in rates of such tax; or
(b) any change in legislation; or
(c) any change in practice of the Inland Revenue, HM Customs and Excise or any other relevant taxation or excise authorities in each case occurring after Completion.
6.10 The Seller breach) shall not form the basis of a Claim and shall not be counted liable in determining whether respect of any Warranty Claim or claim under the Deductible has been reached. In no event shall any party be liable Tax Covenant to any other party the extent that the matter giving rise to such claim was provided for or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, taken into account in the aggregate, Completion Accounts.
6.11 Any amount paid by the Seller in respect of any Warranty Claim or claim under the Tax Covenant shall be deemed to reduce the amount of the consideration paid by the Purchaser for the Shares.
6.12 Nothing contained in this Section 9.4 clause 6 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (limit the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible Purchaser's or the Seller Liability Cap apply Company's obligations to mitigate any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap loss or the Survival Period limit any Claims or liabilities damage arising out of any fraud circumstances giving rise to a Warranty Claim or which it may incur in consequence of any breach of Warranty.
6.13 The sole remedy of the Purchaser for any breach of any of the Warranties or any other breach of this Agreement by any Sellerthe Seller shall be an action for damages. The Purchaser shall not be entitled to rescind or terminate this Agreement in any circumstances whatsoever, other than in exercise of any such rights in respect of fraudulent misrepresentation.
6.14 The Seller shall not be liable for any Warranty Claim which would not have arisen but for an act, omission or transaction carried out after the Completion Date by the Purchaser or its respective directors, employees or agents or successors in title otherwise than in the ordinary course of business.
6.15 If the Seller pays to the Purchaser or the Company an amount in discharge of a Warranty Claim for breach of Warranty or in respect of a claim under the Tax Covenant and the Purchaser or the Company subsequently recovers whether by payment, discount, credit or relief or otherwise from a third party (including any insurer or tax authority) a sum which is referable to the matter giving rise to the Warranty Claim or obtains a relief (as defined in the Tax Covenant) which is so referable, the Purchaser or the Company shall within 5 Business Days of receiving any such sum repay to the Seller:
(a) an amount equal to the sum recovered from the third party less any reasonable costs and expenses incurred by the Purchaser or the Company in recovering the same and any tax suffered on the receipt; or
(b) if the figure resulting under paragraph (a) above is greater than the amount paid by the Seller to the Purchaser or the Company in respect of the relevant Warranty Claim such lesser amount as shall have been so paid by the Seller.
6.16 The Purchaser agrees for itself and on behalf of the Company with the Seller that each of them shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any one shortfall, damage, deficiency, breach or other set of circumstances which give rise to one or more Warranty Claims, and for this purpose recovery by the Purchaser or the Company shall be deemed to be recovery by each of them.
6.17 If the Purchaser becomes aware of any third party claim, potential claim, matter or event (a "third party claim") which might lead to a Warranty Claim for breach of Warranty being made, subject to being fully indemnified to its reasonable satisfaction by the Seller against all reasonable out-of-pocket costs and expenses incurred by the Purchaser in relation to the Claim but not including the Claim itself, the Purchaser:
(a) shall procure that notice of such third party claim is promptly given to the Seller;
(b) shall not make (or, as appropriate, shall co-operate to procure that the Company shall not make) any admission of liability, agreement or compromise with any person, body or authority in relation to any such third party claim without prior consultation and with the prior agreement of the Seller which shall not be unreasonably withheld or delayed;
(c) shall take (or, as appropriate, shall co-operate to procure that the Company shall take) such action as the Seller may reasonably request to avoid, dispute, resist, appeal, compromise or defend such third party claim or any adjudication in respect of that third party claim; and
(d) if so required by the Seller in writing, shall ensure (or, as appropriate, shall co-operate to procure that the Company shall ensure), at the request in writing of the Seller, that the Seller is placed in a position to take on or take over the conduct of all proceedings and/or negotiations of whatsoever nature arising in connection with the third party claim in question and provide (or, as appropriate, co-operate to procure that the Company provides) such information and assistance as the Seller may reasonably require in connection with the preparation for and conduct of such proceedings and/or negotiations.
6.18 The Purchaser shall indemnify the Seller from and against any liabilities which arise from the employment by the Purchaser of the Company's employees on or after the Completion Date and against any liabilities which are attributable to any breach or default by the Purchaser in relation to any of the Employees.
6.19 Where, prior to the Completion Accounts being agreed in accordance with the provisions of this Section 9.4 Schedule 2 the Purchaser notifies the Seller of a Claim, the subject matter of which could also be included in the Completion Accounts, the Purchaser agrees that the subject matter of the Claim shall survive Closingbe dealt with under the Completion Accounts mechanism rather than as a Claim.
6.20 Where the Purchaser is able to bring a claim for breach of Warranty against the Seller (a "Warranty Right") and arising out of the same set of circumstances the Company or the Purchaser's holding company has rights under the Licence to indemnification (a "Licence Right"), the Purchaser may, at its option exercise either its Warranty Right or its Licence Right but in exercising one such right shall be estopped from exercising the other.
Appears in 1 contract
Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to ClosingThe provisions of, and nevertheless proceeds to the Parties’ respective obligations under, this Section 13 shall survive Closing despite the ability to terminate this Agreement pursuant to the terms or termination of this Agreement; provided, Buyer agrees that Sellers however, that:
13.3.1 Seller shall have no liability to Buyer for breach of any warranty or representation contained in this Agreement, under this Section 13, Section 5.1 or otherwise, unless Buyer has given Seller written notice claiming such breach, stating in reasonable detail the factual basis for such claim, no later than the 365th Day after the Closing Date.
13.3.2 Seller shall have no liability to Buyer under this Section 13, Section 5.1 or otherwise until the aggregate of Buyer’s Claims exceeds $225,000, and then Seller’s liability shall be limited to the excess of Buyer’s damages over $225,000. Seller’s liability obligations under this Section 13, Section 5.1 or otherwise shall be net of any insurance proceeds (net of its affiliates any costs incurred in collecting such proceeds) realized by Buyer or which would be realized if a claim were properly pursued under Buyer’s insurance policy (and Buyer shall diligently pursue all claims under any such insurance). Seller’s aggregate liability under this Section 13, Section 5.1 or otherwise shall be limited in the aggregate to ten percent of the Purchase Price.
13.3.3 Except for claims related to fraud and except as otherwise provided in Sections 9.1.5 and 9.1.7, the remedies provided in this Section 13 shall after Closing be Buyer’s sole and exclusive monetary remedies with respect to the breach of any warranty or representation of Seller contained in this Agreement or with respect to any Claims relating matters for which indemnification is provided in this Section 13 or otherwise arising out of the transactions described in this Agreement and shall preclude Buyer from seeking any other monetary remedy in respect to any such Known Mattersmatters. If In no event shall either Party have liability under this Section 13, Section 5.1 or otherwise for consequential or incidental damages.
13.3.4 Seller shall have no liability to Buyer discovers a for any breach of any representations, warranties warranty or covenants of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 or in representation contained herein under this Section 9.4) the total of all Claims for indemnity 13, Section 5.1 or damages otherwise with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount of the Deductible, but subject to the Seller Liability Cap (defined below). Known Matters matter of which Buyer is actually aware or of which it has received written notice prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or had knowledge as of the Closing Date (in of facts which constitute a breach by the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate of a warranty or representation made by it under this Agreement pursuant and failed to disclose such knowledge to the terms Seller.
13.3.5 Buyer shall not have any liability to Seller under this Section 13, Section 4.6 or otherwise, for repair or replacement of any damaged portion of the Hotel (i) if Closing occurs or (ii) unless Seller gives Buyer written notice of such damage by the later of (A) 45 Days after the termination of this Agreement as a result of or (B) twenty Days after Seller discovers such Seller breach) damage.
13.3.6 Buyer shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall have any party be liable liability to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, Seller under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “13, Section 4.6 or otherwise, for any claims against Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible resulting from activities of Buyer or the Seller Liability Cap apply to any post-Closing adjustments Buyer’s representatives pursuant to Section 5.5(k); and (b) 4.5, unless Seller give Buyer written notice of such claim within 45 Days after Seller receives notice of the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closingsame.
Appears in 1 contract
Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliatestheir Affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains information providing notice or actual knowledge or written notice of Known Matters after the Effective Date but prior to the Closing, and with knowledge or notice of same, nevertheless proceeds to Closing despite consummates the ability to terminate this Agreement pursuant to the terms of transaction contemplated by this Agreement, Buyer agrees that Sellers shall have no liability to Buyer or any of its affiliates Affiliates with respect to any Claims relating to such Known MattersMatters unless, prior to consummation of the Closing, such party delivers written notice to Sellers (i) setting forth in reasonable detail the Known Matters upon which the Claim is based, (ii) containing a statement of the representations or warranties which Buyer claims to have been inaccurate, and (iii) containing a statement of the amount of damages for which Buyer believes Sellers are liable because of such Known Matters (which estimate shall not be binding on Sellers). If In any event, if Buyer discovers a breach of any representations, such representations or warranties or covenants of Sellers, whether prior to or following the Closing, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 10.3 or in the foregoing provisions of this Section 9.410.4) the total of all Claims for indemnity or damages with respect to any such breach breach, combined with any liability under Section 13.12, is reasonably estimated to exceed Two Hundred Fifty Thousand and NO/100 Dollars ($200,000.00250,000.00) in the aggregate (the “DeductibleFloor”); provided, howeverin which event and once the Floor is reached, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for the full amount of all such Claims and liabilitieslosses, including the amount of the Deductible, but subject to the Seller Liability Cap (as defined below). Known Matters of which Buyer is actually aware or has actual knowledge of which it has received written notice prior to the Effective Date, and Known Matters of which Buyer first has actual knowledge of after the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) but on or prior to or as of before the Closing Date (and that are not identified in writing by Buyer to Sellers prior to consummation of the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms of this Agreement as a result of such Seller breach) Closing, shall not form the basis of a Claim and shall not be counted in determining whether the Deductible Floor has been reached. In no event shall any party Seller be liable to any other party Buyer, or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ Sellers total liability, in the aggregate, under this Section 9.4 10.4 and under Section 13.12 shall not exceed Ten Six Million and NO/100 Four Hundred Thousand Dollars ($10,000,000.006,400,000) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CNL Lifestyle Properties Inc)
Limitation on Claims. Notwithstanding any provision of No claims shall be payable under this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliates, SECTION 9 with respect to any Claims based on Known Matters Damages unless and until the aggregate Damages owing under this SECTION 9 in respect of any Indemnitee (as defined below) exceed $100,000, in which Buyer has actual knowledge case the Indemnitee shall be entitled to indemnification from the indemnifying party for all Damages without regard to such threshold. As used herein, an "INDEMNITEE" means one or written notice prior more of the AIC Indemnified Parties or the Xtrana Indemnified Parties to the Effective Dateextent that such parties seek indemnification from the other pursuant to this SECTION 9. If Buyer first obtains actual knowledge The Xtrana Indemnified Parties' sole and exclusive remedy for indemnification claims against AIC under this Agreement shall consist of its right to set off any Damages against the Holdback Shares and the AIC Indemnified Parties' sole and exclusive remedy for indemnification claims against Xtrana under this Agreement shall consist of their right to receive additional shares of Xtrana Common Stock out of the AIC Indemnification Shares, in either case pursuant to the procedure described in SECTION 9.5 hereof. No claims shall be payable with respect to any representation or written notice of Known Matters warranty unless such claim is asserted in writing within twelve (12) months after the Closing Date (the "INDEMNIFICATION TERMINATION PERIOD"). For the purposes of this SECTION 9.4 a month shall be deemed to elapse at 5:00 p.m. California time on the day of the month on which the Closing Date occurred. (For example, if the Effective Date but prior Time occurs on March 15, 2005, the sixth month would be deemed to Closingelapse at 5:00 p.m. California time on September 15, and nevertheless proceeds 2005.) All Holdback Shares not then subject to Closing despite indemnification claims under SECTION 9.3.2 hereof shall be released to the ability to terminate this Agreement AIC's pre-Merger shareholders pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability the Escrow Agreement upon the expiration of the Indemnification Termination Period. All AIC Indemnification Shares not then subject to Buyer or any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties or covenants of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 or in this Section 9.4) the total of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers indemnification claims under SECTION 9.3.1 hereof shall be liable for all such Claims released from escrow and liabilities, including the amount of the Deductible, but subject to the Seller Liability Cap (defined below). Known Matters of which Buyer is actually aware or of which it has received written notice prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or as of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement permanently cancelled pursuant to the terms Escrow Agreement upon the expiration of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive ClosingIndemnification Termination Period.
Appears in 1 contract
Samples: Merger Agreement (Xtrana Inc)
Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no 10.1 The Seller shall have any liability to Buyer or any of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability to Buyer in respect of any breach or non-fulfilment of any of its affiliates with respect to any the Warranties given by it unless the Purchaser has served on the Seller a written notice on or before 31 December 2002 after Completion giving a detailed description of the nature of the breach in question.
10.2 The aggregate amount of the liability of the Seller for all Warranty Claims relating to such Known Matters. If Buyer discovers a breach or claim(s) under clause 2 of any representations, warranties or covenants of Sellers, the Sellers Tax Covenant shall not exceed US$20,560,001.
10.3 The Seller shall not be liable, individually or collectively, in connection therewith, unless and until (in addition liable for any Warranty Claim to the other limitations set forth in Section 9.3 extent that the Purchaser or in this Section 9.4) the total of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount directors of the Deductible, but subject to Target Companies appointed by the Seller Liability Cap (defined below). Known Matters of which Buyer is actually aware or of which it has received written notice prior to AutoLogic Group had actual knowledge at the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or as of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms date of this Agreement of any specific fact, matter, event or circumstance which it or they knew would give rise to a Warranty Claim.
10.4 If the Seller pays to the Purchaser an amount in discharge of a Warranty Claim for breach of Warranty or an amount in discharge of a claim under the Tax Covenant and the Purchaser or the Target Companies subsequently recover from a third party (including any Tax authority) a sum which is referable to the matter giving rise to the Warranty Claim or a claim under the Tax Covenant the Purchaser shall (or, as a result appropriate, shall procure that the Target Company shall) as soon as reasonably practicable once it or the Target Company has received such amount and only after it or the Target Company has recovered the full amount of its loss in respect of such Seller breach) shall not form matter repay to the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall Seller:
(a) the Deductible actual amount recovered from the third party after deducting an amount equal to the costs and expenses incurred by the Purchaser or any Target Company in recovering the same and any tax suffered on the receipt; or
(b) if the figure resulting under paragraph (a) above is greater than the amount paid by the Seller to the Purchaser or the Target Company in respect of the relevant Warranty Claim or claim under the Tax Covenant, such lesser amount as shall have been so paid by the Seller.
10.5 The Purchaser agrees for itself and on behalf of the Target Companies with the Seller Liability Cap that each of them shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in excess of their total loss in respect of any shortfall, damage, deficiency, breach or other set of circumstances which gives rise to one or more Warranty Claims, and for this purpose recovery by the Purchaser or the Target Companies shall be deemed to be a recovery by each of them.
10.6 The limitations on the liability of the Seller set out in this clause 10 shall not apply to any postWarranty Claim if the matter or claim involves fraud or wilful non-Closing adjustments pursuant to Section 5.5(k); and (b) disclosure on the Deductible, part of the Seller Liability Cap or any member of the Survival Period Allied Group on or prior to the entry into of this Agreement or Completion.
10.7 It is acknowledged by the parties to this Agreement that any allocation of consideration set out in this Agreement shall not limit in any Claims way the Purchaser's right to claim up to US$20,560,001 for breach or liabilities arising out non-fulfilment of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closingthe Warranties.
Appears in 1 contract
Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no neither the Operator nor any Seller shall have any liability to Buyer or EAGL, as applicable, or any of its affiliatestheir Affiliates, with respect to any Claims based on Known Matters of which Buyer has actual or EAGL, as applicable, have knowledge or written notice prior to the Effective Date. If Buyer and/or EAGL, as applicable, first obtains actual information providing notice or knowledge or written notice of Known Matters after the Effective Date but prior to the Closing, and with knowledge or notice of same, nevertheless proceeds to Closing despite consummates the ability to terminate this Agreement pursuant to the terms of transaction contemplated by this Agreement, Buyer agrees and EAGL agree that Sellers (or Operator, as applicable) shall have no liability to Buyer or EAGL or any of its affiliates their Affiliates with respect to any Claims relating to such Known MattersMatters unless, prior to consummation of the Closing, such party delivers written notice to Sellers (i) setting forth in reasonable detail the Known Matters upon which the Claim is based, (ii) containing a statement of the representations or warranties which Buyer or EAGL, as applicable, claims to have been inaccurate, and (iii) containing a statement of the amount of damages for which Buyer or EAGL, as applicable, believes Sellers are liable because of such Known Matters (which estimate shall not be binding on Sellers or the Operator). If In any event, if, Buyer or EAGL discovers a breach of any representationssuch representations or warranties of the Operator or Sellers, warranties whether prior to or covenants of Sellersfollowing the Closing, the Sellers and the Operator shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 10.3 or in the foregoing provisions of this Section 9.410.4) the total of all Claims for indemnity or damages with respect to any such breach breach, combined with any liability under Section 13.18, is reasonably estimated to exceed Two Six Hundred Thousand and NO/100 Dollars ($200,000.00600,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount of the Deductible, but subject to the Seller Liability Cap (defined below). Known Matters of which Buyer is actually or EAGL are aware or of which it has received written notice prior to the Effective Date, and Known Matters of which Buyer or EAGL first become aware after the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) but on or prior to or as of before the Closing Date (and that are not identified in writing by Buyer or EAGL to Sellers prior to consummation of the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms of this Agreement as a result of such Seller breach) Closing, shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. If the Deductible is reached, and except to the extent that Operator or Sellers have cured any matter that might otherwise form the basis of a Claim, then Operator and the applicable Sellers shall be liable for all Claims that are otherwise permitted by this Section 10.4 and properly asserted under Section 10.3 and that are based on actual uncured breaches of representations and warranties by Sellers or Operator, and not just all Claims in excess of the Deductible. In no event shall Operator or any party Seller be liable to any other party Buyer, EAGL or any of its their affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CNL Income Properties Inc)
Limitation on Claims. Notwithstanding (a) No Seller Indemnified Party nor Buyer Indemnified Party shall make any provision of this Agreement claim for indemnification pursuant to the contrary, no Seller shall have any liability to Buyer Sections 6.1 or any of its affiliates, 6.2 with respect to any matter unless:
(i) the amount of the Damages arising out of such matter is in excess of $25,000 (a "RELEVANT CLAIM"); and
(ii) the aggregate amount of all Damages with respect to which a Relevant Claim is being made by an Indemnified Party against any or all of the applicable Indemnifying Parties (together with all such Relevant Claims based on Known Matters previously made by the applicable Indemnified Parties against the applicable Indemnifying Parties) exceeds $100,000.
(b) Notwithstanding the provisions of which Buyer has actual knowledge or written notice prior Section 6.4(a), any indemnified claim having its basis in any of the following shall not be subject to the Effective Date. If thresholds established by such provisions: (A) a breach of the representations, warranties, covenants and agreements made in 1.4(b)(2), 3.6, 3.7, 3.9, 3.14(c), 3.14(d), 3.14(e), 3.14(j), 3.15, 3.16, 3.17, 3.18, 3.19, 3.22 and 4.3, (B) fraud or intentional misrepresentation, (C) a breach by Buyer first obtains actual knowledge to pay or written notice observe any obligation of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement Seller assumed by Buyer pursuant to the terms hereof and any agreement required herein, (D) any breach by Buyer to pay the Purchase Price hereunder, or (E) a breach by Buyer or Seller of its obligation under Section 1.9 to pay any post-Closing adjustment to the Purchase Price required by such Section.
(c) Buyer shall not be under any liability and no claim under Section 6.1 of this Agreement shall be made to the extent that SCH or Seller discovered such breach prior to the Closing Date and failed to disclose such breach to Buyer as provided in Section 11.2 hereof, except that Buyer shall be liable to the extent Buyer had knowledge of such breach or to the extent SCH or Seller would have nonetheless suffered damages had such breach been disclosed to Buyer prior to the Closing Date.
(d) Neither Seller nor SCH shall be under any liability and no claim under Section 6.2 of this Agreement shall be made to the extent that Buyer discovered such breach prior to the Closing Date and failed to disclose such breach to SCH and Seller as provided in Section 11.2 hereof, except that SCH and Seller shall be liable to the extent either SCH or Seller had knowledge of such breach or to the extent Buyer would have nonetheless suffered damages had such breach been disclosed to SCH or Seller prior to the Closing Date.
(e) If an Indemnifying Party is liable to an Indemnified Party for breach of any representation, warranty or undertaking, the liability of the Indemnifying Party shall be reduced and any amount paid by such Indemnifying Party shall be refunded to the extent that the Indemnified Party is eligible to obtain a reduction in its liability for tax (whether by way of credit or otherwise and calculated assuming that the Indemnified Party is taxed at the maximum rate applicable to such entity) which it would not have been eligible for had the breach which gave rise to liability of the Indemnifying Party not arisen.
(f) Each Indemnified Party shall cooperate in all reasonable respects with the reasonable requests of its applicable Indemnifying Parties in the conduct of litigation, the making of settlements and the enforcement of any right of contribution to which the Indemnified Parties may be entitled from any person or entity in connection with the subject matter of any litigation subject to indemnification hereunder. In addition, the Indemnified Parties shall, upon the reasonable requests by their applicable Indemnifying Parties or counsel selected by such Indemnifying Parties, attend hearings and trials, assist in the securing and giving of evidence, assist in obtaining the presence or cooperation of witnesses, make available its own personnel, and assist in effecting settlements; and shall take such action as is reasonably necessary and appropriate in connection with such litigation. Seller Indemnified Parties shall not, except at their own cost, voluntarily make any payment, assume any obligation, incur any expense, or settle or compromise any claim without the express approval of Seller Indemnifying Parties in connection with any matter that is subject to indemnification hereunder.
(g) The indemnification provided under Sections 6.1 and 6.2 shall survive the execution and delivery of this Agreement, Buyer agrees that Sellers shall have no liability the closing of the transactions contemplated hereby and the satisfaction of all other obligations of any party hereto under this Agreement. In respect of the indemnification provided under Section 6.1(i) and 6.2(i) relating to Buyer or any arising out of its affiliates a breach of a representation or warranty, and with respect to any Claims the indemnification provided under Sections 6.1(iii) and 6.2(iii) relating to or arising out of a misrepresentation in or omission from a Buyer Additional Document or a Seller Additional Document and which constitutes a "bring down" of a party's representations and warranties made in this Agreement, no indemnification may be asserted under this Agreement unless the party making the claim gives the party against whom the claim is to be made notice of such Known Matters. If Buyer discovers a breach claim before the end of any representationsthe applicable Survival Period (as defined in Section 12.17 hereto); PROVIDED, warranties or covenants that such claim shall survive the expiration of Sellersthe Survival Period if notice thereof, the Sellers shall not be liableas required by Section 6.3, individually or collectively, in connection therewith, unless and until (in addition was given prior to the expiration of the Survival Period. In respect of the other limitations indemnification provided under Sections 6.1 and 6.2, there shall be no limitation on when a claim for indemnification hereunder may be sought other than as set forth in Section 9.3 6.1 or in this Section 9.4) 6.2, and the total of all Claims for indemnity or damages with respect to parties hereby waive any such breach is reasonably estimated limitation which may be imposed by law.
(h) If a Performing Party pays a claim to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductiblea Claiming Party pursuant to this Agreement, then Sellers such party shall be liable for subrogated to all such Claims and liabilities, including the amount rights of the Deductible, but subject to the Seller Liability Cap (defined below). Known Matters of which Buyer is actually aware or of which it has received written notice prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior party to or as for whom the claim was paid against others for recovery of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its loss, except affiliates, designeesemployees, officers, directors, successors or assigns of the party to or for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in whom the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closingclaim was paid.
Appears in 1 contract
Samples: Stock Purchase Agreement (Paracelsus Healthcare Corp)
Limitation on Claims. 11.1 Notwithstanding any provision of anything in this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms provisions of this Agreement, clause 11 shall operate to limit the liability of the Seller in respect of any claim by the Buyer agrees that Sellers for any breach of or inaccuracy in the Warranties save where the claim arises in consequence of the fraud or fraudulent misrepresentation on the part of the Seller.
11.2 The Seller shall have no liability to Buyer or in respect of any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties of the Warranties unless the Buyer has served on the Seller a written notice on or covenants before 12 months from completion giving such details are available of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to claim including the other limitations set forth in Section 9.3 or in this Section 9.4) the total Buyer's best estimate of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount of the DeductibleSeller's liability in respect thereof.
11.3 The liability of the Seller in respect of any claim by the Buyer for any breach of, but subject or inaccuracy in, the Warranties shall absolutely determine (if such claim has not been previously satisfied, settled or withdrawn) if legal proceedings in respect of such claim shall not have been commenced within nine months of the service of such notice and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been properly issued and validly served upon the Seller.
11.4 No claim shall be made in respect of any breach of any of the Warranties in this Agreement (each a "Warranty Claim"):
(a) where the liability for any individual claim (or what would be such liability apart from this paragraph) is less than (pound)1000; and (b) unless the aggregate amount of all such claims in excess of (pound)1000 exceeds (pound)10,000 and thereafter the full amount of all claims shall then be payable.
11.5 The total aggregate amount of the Seller's liability in respect of any Warranty Claim or Claims shall be (in the absence of fraud) limited to and shall in no event exceed (pound)300,000.
11.6 The Seller shall not be liable in respect of any Warranty if and to the extent that the loss occasioned thereby has been recovered under any other Warranty.
11.7 If the Seller pays at any time to the Buyer an amount pursuant to a claim in respect of the Warranties or under or in connection with this Agreement and the Buyer subsequently becomes entitled to recover from some other person any sum in respect of any matter giving rise to such claim, the Buyer shall take all reasonable steps to enforce such recovery, and shall forthwith, following such recovery, repay to the Seller Liability Cap (defined below). Known Matters so much of the amount paid by the Seller to the Buyer as does not exceed the net sum actually recovered from such other person having deducted all referable costs and expenses.
11.8 The Buyer shall take all reasonable action to mitigate any loss suffered by it in respect of which a claim could be made under the Warranties.
11.9 The Buyer is actually shall or shall procure that, upon the Buyer becoming aware of any claim, action or demand against it or matter likely to give rise to any of which it has received written notice prior to the Effective Date (these in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or as respect of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party Warranties or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of under or in connection with this Agreement. Further, the Buyer acknowledges and agrees shall:
(i) as soon as reasonably practicable, notify the Seller by written notice as soon as it appears to the Buyer that Sellers’ total the Seller is or may become liable under the Warranties or under or in connection with this Agreement for any assessment or claim of a third party received by or coming to the notice of the Buyer;
(ii) subject to the Seller indemnifying the Buyer against any liability, costs, damages or expenses which may be incurred thereby and paying and continuing to pay, following receipt of an invoice for the same, the amount of any such expenses on an interim basis as they are incurred as the Buyer may reasonably require, take such reasonable action and give such information and access to personnel, premises, chattels, documents and records to the Seller and their professional advisers as the Seller may reasonably request, provided that the Buyer shall not be obliged to take any action which it reasonably considers will or is likely to be detrimental to its commercial interests with respect to the Hardware Business in any material respect;
(iii) at the request of the Seller, allow the Seller to take the sole conduct of such actions as the Seller may reasonably deem appropriate, not being an action the Buyer reasonably considers will be detrimental to its commercial interests with respect to the Hardware Business in any material respect, in connection with any such assessment or claim in the aggregate, under this Section 9.4 name of the Buyer and in that connection the Buyer shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible give or cause to be given to the Seller Liability Cap apply all such assistance as the Seller may reasonably require in avoiding, disputing, resisting, settling, compromising, defending or appealing any such claim and shall, at the Seller's expense, instruct such solicitors or other professional advisers as the Seller may nominate to act on behalf of the Buyer, as appropriate, but to act in accordance with the Seller's sole instructions;
(iv) make no admission of liability, agreement, settlement or compromise with any third party in relation to any post-Closing adjustments pursuant such claim or adjudication without the prior written consent of the Seller, such consent to Section 5.5(k); not be unreasonably withheld and (b) for the Deductible, avoidance of doubt such consent shall be deemed to be reasonably withheld if the Seller Liability Cap Buyer reasonably considers that the Seller's failure to give such consent will or is likely to be detrimental to the Survival Period limit Buyer's commercial interests with reference to the Hardware business in any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closingmaterial respect.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Baltimore Technologies PLC)
Limitation on Claims. (a) Notwithstanding any provision of anything in this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms provisions of this Agreement, Buyer agrees that Sellers clause 9 shall operate to limit the liability of the Seller in respect of any claim by the Purchaser for any breach of or inaccuracy in the Warranties.
(b) The Seller shall have no liability to Buyer or in respect of any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties of the Warranties unless the Purchaser has served on the Seller a written notice on or covenants before 30 September 2001 giving full details of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to claim including the other limitations set forth in Section 9.3 or in this Section 9.4) the total Purchaser's best estimate of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount of the DeductibleSeller's liability in respect thereof.
(c) The liability of the Seller in respect of any claim by the Purchaser for any breach of, but subject or inaccuracy in, the Warranties shall absolutely determine (if such claim has not been previously satisfied, settled or withdrawn) if legal proceedings in respect of such claim shall not have been commenced within six months of the service of such notice and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been properly issued and validly served upon the Seller.
9.2 No claim shall be made in respect of any breach of any of the Warranties or indemnities in this Agreement (each a "Warranty Claim"):
(a) where the liability for any individual claim (or what would be such liability apart from this paragraph) is less than (pound)25,000; and
(b) unless the aggregate amount of all such claims in excess of (pound)25,000 exceeds (pound)100,000 PROVIDED that if such aggregate amount does exceed (pound)100,000, the Seller's liability shaLL BE limited to the Seller Liability Cap amount by which such aggregate amount exceeds (defined below). Known Matters pound)100,000.
9.3 The total aggregate amount of which Buyer is actually aware the Seller's liability in respect of any Warranty Claim or of which it has received written notice prior to the Effective Date Claims, or otherwise under or in connection with this Agreement shall be (in the absence of fraud) limited to and shall in no event Buyer elects to not proceed to Closing due exceed (pound)300,000.
9.4 If, in respect of any matter which would give rise to a breach by Seller) Warranty Claim the Purchaser or prior to or as a member of the Closing Date Purchaser's group (including the Company) (the "Beneficiary") is entitled to claim under any existing policy of insurance in respect of which the event Buyer elects to close notwithstanding Company is the insured person then no such Seller breach despite matter shall be the ability to terminate this Agreement pursuant to subject of a Warranty Claim unless and until the terms of this Agreement as Beneficiary shall have made a result of claim against the relevant insurer and any amount recovered under such Seller breachinsurance policy (or which could have been recovered had such policies been maintained) shall not form then reduce by the basis amount recovered or extinguish any such Warranty Claim.
9.5 Where the Purchaser or the Beneficiary is at any time entitled to recover from some other person any sum in respect of any matter giving rise to a Claim and shall not be counted in determining whether claim under the Deductible has been reached. In no event shall any party be liable to any other party Warranties or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of under or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liabilitythe Beneficiary shall undertake all reasonable steps to enforce such recovery prior to taking action against the Seller (other than to notify the Seller of the claim against the Seller) and, in the aggregateevent that the Beneficiary shall recover any amount from such other person, the amount of the claim against the Seller shall be reduced by the amount recovered.
9.6 If the Seller pays at any time to a Beneficiary an amount pursuant to a claim in respect of the Warranties or under or in connection with this Agreement and the Beneficiary subsequently becomes entitled to recover from some other person any sum in respect of any matter giving rise to such claim, the Beneficiary shall take all reasonable steps to enforce such recovery, and shall forthwith, following such recovery, repay to the Seller so much of the amount paid by the Seller to the Beneficiary as does not exceed the sum actually recovered from such other person.
9.7 If any amount is repaid to the Seller by a Beneficiary pursuant to clause 9.6 above, an amount equal to the amount so repaid shall be deemed never to have been paid by the Seller to the Purchaser for the purposes of calculating the Seller's total aggregate liability under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall clause 9.
(a) The Purchaser shall or shall procure that, upon a Beneficiary becoming aware of any claim, action or demand against it or matter likely to give rise to any of these in respect of the Deductible Warranties or under or in connection with this Agreement, the Beneficiary shall:
(i) as soon as reasonably practicable, notify the Seller Liability Cap apply by written notice as soon as it appears to the Purchaser that the Seller is or may become liable under the Warranties or under or in connection with this Agreement for any assessment or claim of a third party received by or coming to the notice of the Purchaser;
(ii) subject to the Seller indemnifying the Beneficiary to its reasonable satisfaction against any liability, costs, damages or expenses which may be incurred thereby, take such reasonable action and give such information and access to personnel, premises, chattels, documents and records to the Seller and their professional advisers as the Seller may reasonably request;
(iii) at the request of the Seller, allow the Seller to take the sole conduct of such actions as the Seller may reasonably deem appropriate in connection with any such assessment or claim in the name of the Beneficiary and in that connection the Purchaser shall give or cause to be given to the Seller all such assistance as the Seller may reasonably require in avoiding, disputing, resisting, settling, compromising, defending or appealing any such claim and shall, at the Seller's expense, instruct such solicitors or other professional advisers as the Seller may nominate to act on behalf of the Beneficiary, as appropriate, but to act in accordance with the Seller's sole instructions;
(iv) make no admission of liability, agreement, settlement or compromise with any third party in relation to any post-Closing adjustments pursuant such claim or adjudication without the prior written consent of the Seller; and
(v) take all reasonable action to Section 5.5(k); and mitigate any loss suffered by the Beneficiary in respect of which a claim could be made under the Warranties.
(b) the DeductibleIn any event, the Seller Liability Cap shall be entitled at any stage and at its sole discretion to settle any such third party assessment or claim and shall notify the Survival Period limit any Claims Purchaser of its decision so to settle such assessment or liabilities arising out claim.
(a) The only Warranties given in respect of any fraud by any Seller. Intellectual Property or hardware or agreements relating thereto are those contained in paragraph I of Schedule IV and none of the other Warranties shall be deemed to be given in relation to Intellectual Property or hardware or agreements relating thereto.
(b) The provisions only Warranties given in respect of this Section 9.4 employment matters or agreements relating thereto are those contained in paragraph L of Schedule IV and none of the other Warranties shall survive Closingbe deemed to be given in relation to employment matters or agreements relating thereto.
(c) The only Warranties given in respect of pensions arrangements or agreements relating thereto are those contained in paragraph M of Schedule IV and none of the other Warranties shall be deemed to be given in relation to pensions arrangements or agreements relating thereto.
(d) The only Warranties given in respect of property related matters or agreements relating thereto are those contained in paragraph F of Schedule IV and none of the other Warranties shall be deemed to be given in relation to property related matters or agreements relating thereto.
(e) The only Warranties given in respect of environmental matters are those contained in paragraph G of Schedule IV and none of the other Warranties shall be deemed to be given in relation to environmental matters.
Appears in 1 contract
Samples: Share Purchase Agreement (Baltimore Technologies PLC)
