Purchaser Claims. From and after the Closing and subject to the provisions of this Article, the Company agrees to indemnify fully and hold harmless the Purchaser from and against any and all claims, demands, liabilities, damages, penalties, judgments, assessments, losses, costs and expenses in any case, whether arising under strict liability or otherwise (including reasonable attorneys' fees and expenses) (collectively, "Damages"), resulting from, arising out of, based on or relating to: (i) any breach of or inaccuracy in any representation or warranty of the Company in this Agreement or any ancillary agreement or in any certificate furnished to the Purchaser pursuant to this Agreement; (ii) any breach of any covenant or agreement made by the Company in this Agreement; (iii) any civil, criminal or administrative action, suit, claim, hearing, investigation or proceeding (including any counterclaims or cross-claims), to which the Company is a party and that is pending on the date hereof or at the Closing, and whether brought, made or instigated by any governmental entity or any private person; or (iv) Notwithstanding anything in this Agreement to the contrary, for purposes of this Article, (x) a breach of a representation or warranty shall be deemed to exist either if such representation or warranty is actually inaccurate or breached or would have been inaccurate or breached if such representation or warranty had not contained any limitation or qualification as to Knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language, and (y) the amount of Damages in respect of any breach of a representation or warranty (including any deemed breach resulting from the application of clause (x)) shall be determined without regard to any limitation or qualification as to knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language set forth in such representation or warranty, it being the intention of the parties hereto that (except as otherwise set forth in this Article) Purchaser shall be indemnified and held harmless from and against any and all Damages suffered or incurred by it resulting from, arising out of, based on or relating to the failure of any representation or warranty to be true, correct and complete in any respect, determined in each case without regard to any qualification as to Knowledge, materiality or Material Adverse Effect or similar language set forth with respect thereto.
Appears in 1 contract
Samples: Subscription Agreement (Timberjack Sporting Supplies, Inc.)
Purchaser Claims. From Sellers, jointly and after the Closing and subject to the provisions of this Articleseverally, the Company agrees to indemnify fully will indemnify, defend and hold harmless the Purchasers and their respective parents and Affiliates, and each of their officers and directors, and successors and assigns (collectively, the “Purchaser Group”), from and against any and all demands, suits, penalties, obligations, damages, claims, demandslosses, liabilities, damages, penalties, judgments, assessments, lossespayments, costs and expenses in (“Losses”), that are incurred by or awarded against any casemember of the Purchaser Group, whether arising under strict liability or otherwise (including reasonable attorneys' fees legal, accounting, and expenses) other expenses in connection therewith, which arise out of, are in connection with, or relate to, the following (collectively, "Damages"), resulting from, arising out of, based on or relating to:“Purchaser Claims”):
(i) any material breach or violation of any covenant, obligation, or inaccuracy agreement of Sellers set forth in any representation or warranty of the Company in this Agreement or any ancillary agreement or in any certificate furnished to the Purchaser pursuant to this Agreement;
(ii) any breach or inaccuracy of any covenant the representations or agreement warranties made by the Company Sellers in this AgreementAgreement or in any certificate delivered by Sellers at Closing;
(iii) any civil, criminal or administrative action, suit, claim, hearing, investigation or proceeding (including any counterclaims or cross-claims), to which the Company is a party and that is pending on the date hereof or at the Closing, and whether brought, made or instigated by any governmental entity or any private person; or
(iv) Notwithstanding anything in this Agreement to the contrary, for purposes of this Article, (x) a breach failure of a representation or warranty shall made by Sellers in this Agreement or in any certificate delivered by Sellers at Closing to be deemed to exist either if true and correct, where such failure does not constitute a breach of such representation or warranty is actually inaccurate or breached or but would have been inaccurate or breached if constitute a breach of such representation or warranty had not contained any limitation or qualification as to Knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language, and (y) the amount of Damages in respect of any breach of a representation or warranty (including any deemed breach resulting from the application of clause (x)) shall be determined without regard to if any limitation or qualification as to knowledge, materiality, materiality or a Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language set forth in such representation or warrantywarranty were disregarded;
(iv) if the Closing occurs, it being the intention of Excluded Assets (including any Non-Transferred Excluded Matter); or
(v) if the parties hereto that Closing occurs, the Excluded Liabilities (except as otherwise set forth in this Article) Purchaser shall be indemnified and held harmless from and against including any and all Damages suffered or incurred by it resulting from, arising out of, based on or relating to the failure of any representation or warranty to be true, correct and complete in any respect, determined in each case without regard to any qualification as to Knowledge, materiality or Material Adverse Effect or similar language set forth with respect theretoNon-Transferred Excluded Matter).
Appears in 1 contract
Purchaser Claims. From and after the Closing and subject to the provisions of this ArticleExcept as otherwise provided in Section 12.2(b), the Company agrees to indemnify fully Seller will indemnify, defend and hold harmless the Purchaser and its parents and Affiliates, and each of their officers, directors, employees, attorneys, agents and successors and assigns (collectively, the “Purchaser Group”), from and against any and all damages, claims, losses, liabilities, obligations, costs and expenses, including reasonable legal, accounting and other expenses, and the costs and expenses of any and all actions, suits, proceedings, demands, liabilities, damages, penaltiesassessments, judgments, assessmentssettlements and compromises, losses, costs and expenses in any case, whether arising under strict liability which arise out of or otherwise (including reasonable attorneys' fees and expenses) relate to the following (collectively, "Damages")“Purchaser Claims”): any breach or violation by the Seller or the Project Company of this Agreement, the Related Agreements or any agreement executed in connection with the transactions contemplated by this Agreement; any breach or inaccuracy of the representations or warranties of the Seller or the Project Company set forth herein; any Third Party Claims resulting from, from or arising out of, based on or relating to:
(i) any breach of or inaccuracy in any representation or warranty of the Company in this Agreement development, financing, construction, testing and preparation of the Project for commercial operation or out of the Seller’s or the Project Company’s ownership, use or operation of the Project or any ancillary agreement Project Assets prior to and through the Closing Date, including without limitation actions or claims with respect to tax liabilities, claims by third parties in respect of contract, tort and other liabilities, and liabilities arising under the Financing Arrangements; any certificate furnished to the Purchaser pursuant to this Agreement;
(ii) any breach Indemnifiable Loss resulting from or arising out of any covenant Pre-Closing Environmental Conditions; any Indemnifiable Loss resulting from or agreement made arising out of the disposal, release or threatened release of Hazardous Substances by or on behalf of the Seller or the Project Company in this Agreement;
(iii) any civil, criminal or administrative action, suit, claim, hearing, investigation or proceeding (including any counterclaims or cross-claims), to which the Company is a party and that is pending on the date hereof or at the Closing, and whether brought, made Seller’s or instigated the Project Company’s direction or by its or their arrangement; any governmental entity loss or damages resulting from or arising out of the Seller’s or the Project Company’s ownership or operation of the Excluded Assets after the Closing or that are related to the Excluded Liabilities; any Taxes for which the Seller or the Project Company is responsible pursuant to Section 11.4; or any private person; or
(iv) Notwithstanding anything additional costs, liabilities or loss of revenues attributable to modifications to any Governmental Approval, Permit or Consent occurring in this Agreement connection with the transfer of such Governmental Approval, Permit or Consent to the contraryPurchaser, for purposes of this Article, (x) a breach of a representation or warranty shall be deemed to exist either if such representation or warranty transfer is actually inaccurate or breached or would have been inaccurate or breached if such representation or warranty had not contained any limitation or qualification as to Knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language, and (y) the amount of Damages in respect of any breach of a representation or warranty (including any deemed breach resulting from the application of clause (x)) shall be determined without regard to any limitation or qualification as to knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language set forth in such representation or warranty, it being the intention of the parties hereto that (except as otherwise set forth in this Article) Purchaser shall be indemnified and held harmless from and against any and all Damages suffered or incurred by it resulting from, arising out of, based completed on or relating prior to the failure of any representation or warranty to be true, correct and complete in any respect, determined in each case without regard to any qualification as to Knowledge, materiality or Material Adverse Effect or similar language set forth with respect theretoClosing.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Purchaser Claims. From and after the Closing and subject to the provisions of this Article, the Company agrees to (a) Seller shall indemnify fully and hold harmless the Purchaser Purchaser, its officers, directors, agents, successors, assigns or affiliates, from and against any and all demands, claims, demands, liabilities, damages, penalties, judgmentsactions or causes of action, assessments, losses, costs and expenses diminution in any casevalue, whether damages, but shall not include punitive, special or consequential damages or attorney fees, except for claims arising under strict liability or otherwise (including reasonable attorneys' fees and expenses) (collectively, "Damages"SECTION 7.1(A)(IV), resulting from, suffered or incurred by any such party by reason of or arising out of, based on or relating toof any of the following:
(i) any the breach by such Seller of or inaccuracy in any representation or warranty of the Company in this Agreement or any ancillary agreement or in any certificate furnished to the Purchaser pursuant to this Agreementcontained herein;
(ii) any breach the non-fulfillment of any covenant or agreement made by the Company in this Agreement;of such Seller contained herein; and
(iii) any civil, criminal liability or administrative action, suit, claim, hearing, investigation or proceeding (including any counterclaims or cross-claims), to which obligation of the Company is a party and that is pending on Seller not included in the date hereof or at the Closing, and whether brought, made or instigated by any governmental entity or any private personAssumed Liabilities; orand
(iv) Notwithstanding anything in this Agreement the operation and conduct of the business of the Company prior to the contraryEffective Time, so long as such claim was not a result of any claim arising out of the operation of the Clinic that was caused by the Purchaser; and
(v) any claim by any Person for purposes of this Article, (x) a breach of a representation any brokerage or warranty shall be deemed to exist either if such representation finder's fee or warranty is actually inaccurate or breached or would have been inaccurate or breached if such representation or warranty had not contained any limitation or qualification as to Knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language, and (y) the amount of Damages commission in respect of the transactions contemplated herein as a sole result of Seller's dealings, agreement, or arrangement with such Person. Purchaser represents they have not retained any breach such broker or person.
(b) The amount of a representation or warranty (including any deemed breach resulting liability of Seller under this SECTION 7.1 shall be computed net of any tax benefit to Purchaser from the application matter giving rise to the claim for indemnification hereunder and net of clause any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(xc) The representations and warranties of Seller contained in this Agreement, the Schedules, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for a period of one year ("SURVIVAL PERIOD")) . Anything to the contrary notwithstanding, the Survival Period shall be determined without regard extended automatically to include any limitation or qualification time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to knowledgethe claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, materialitydecided, Material Adverse Effect or adjudicated.
(which instead will be read as any adverse effect or change) or similar language set forth in such representation or warranty, it being the intention of the parties hereto that (except as otherwise set forth in this Articled) Purchaser shall be indemnified and held harmless from and against any and all Damages suffered or incurred by it resulting from, arising out of, based on or relating provide written notice to the failure Seller of any representation or warranty claim for indemnification under this Article as soon as practicable. Purchaser shall make commercially reasonable efforts to be truemitigate any damages, correct and complete in expenses, etc. resulting from any respectmatter giving rise to liability of Seller under this Article.
(e) Notwithstanding any other provision of this ARTICLE VII, determined in each case without regard to the aggregate principal amount of the obligation of Seller under this ARTICLE VII shall not exceed the purchase price, unless the obligation was a direct result from any qualification as to Knowledge, materiality or Material Adverse Effect or similar language set forth with respect theretoactivities concerning Medicaid/Medicare.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Healthchoice Inc /Ny/)
Purchaser Claims. From and after the Closing and subject to the provisions of this Article, the Company agrees to indemnify fully and hold harmless the Purchaser from and against any and all claims, demands, liabilities, damages, penalties, judgments, assessments, losses, costs and expenses in any case, whether arising under strict liability or otherwise (including reasonable attorneys' fees and expenses) (collectively, "Damages"), resulting from, arising out of, based on or relating to:
(i) : any breach of or inaccuracy in any representation or warranty of the Company in this Agreement or any ancillary agreement or in any certificate furnished to the Purchaser pursuant to this Agreement;
(ii) ; any breach of any covenant or agreement made by the Company in this Agreement;
(iii) ; any civil, criminal or administrative action, suit, claim, hearing, investigation or proceeding (including any counterclaims or cross-claims), to which the Company is a party and that is pending on the date hereof or at the Closing, and whether brought, made or instigated by any governmental entity or any private person; or
(iv) or Notwithstanding anything in this Agreement to the contrary, for purposes of this Article, (x) a breach of a representation or warranty shall be deemed to exist either if such representation or warranty is actually inaccurate or breached or would have been inaccurate or breached if such representation or warranty had not contained any limitation or qualification as to Knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language, and (y) the amount of Damages in respect of any breach of a representation or warranty (including any deemed breach resulting from the application of clause (x)) shall be determined without regard to any limitation or qualification as to knowledgeKnowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language set forth in such representation or warranty, it being the intention of the parties hereto that (except as otherwise set forth in this Article) Purchaser shall be indemnified and held harmless from and against any and all Damages suffered or incurred by it resulting from, arising out of, based on or relating to the failure of any representation or warranty to be true, correct and complete in any respect, determined in each case without regard to any qualification as to Knowledge, materiality or Material Adverse Effect or similar language set forth with respect thereto. The amount of any liability of Company under this Section 7.1 shall be computed net of any tax benefit to the Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by the Purchaser with respect to the matter out of which such liability arose. The representations and warranties of Company contained in this Agreement, or any certificate delivered by or on behalf of Company pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for a period until the expiration of any applicable statutes of limitation provided by law (“Survival Period”). Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated. The Purchaser shall provide written notice to Company of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar the Purchaser’s ability to assert any such claim except to the extent that Company are actually prejudiced thereby, provided that such notice is received by Company during the applicable Survival Period. The Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Company under this Article.
Appears in 1 contract
Samples: Subscription Agreement (Timberjack Sporting Supplies, Inc.)
Purchaser Claims. From and after the Closing and subject to the provisions of this Article, the Company agrees to indemnify fully and hold harmless the Purchaser from and against any and all claims, demands, liabilities, damages, penalties, judgments, assessments, losses, costs and expenses in any case, whether arising under strict liability or otherwise (including reasonable attorneys' fees and expenses) (collectively, "Damages"), resulting from, arising out of, based on or relating to:
(i) : any breach of or inaccuracy in any representation or warranty of the Company in this Agreement or any ancillary agreement or in any certificate furnished to the Purchaser pursuant to this Agreement;
(ii) ; any breach of any covenant or agreement made by the Company in this Agreement;
(iii) ; any civil, criminal or administrative action, suit, claim, hearing, investigation or proceeding (including any counterclaims or cross-claims), to which the Company is a party and that is pending on the date hereof or at the Closing, and whether brought, made or instigated by any governmental entity or any private person; or
(iv) or Notwithstanding anything in this Agreement to the contrary, for purposes of this Article, (x) a breach of a representation or warranty shall be deemed to exist either if such representation or warranty is actually inaccurate or breached or would have been inaccurate or breached if such representation or warranty had not contained any limitation or qualification as to Knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language, and (y) the amount of Damages in respect of any breach of a representation or warranty (including any deemed breach resulting from the application of clause (x)) shall be determined without regard to any limitation or qualification as to knowledgeKnowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language set forth in such representation or warranty, it being the intention of the parties hereto that (except as otherwise set forth in this Article) Purchaser shall be indemnified and held harmless from and against any and all Damages suffered or incurred by it resulting from, arising out of, based on or relating to the failure of any representation or warranty to be true, correct and complete in any respect, determined in each case without regard to any qualification as to Knowledge, materiality or Material Adverse Effect or similar language set forth with respect thereto. The amount of any liability of Company under this Section 7.1 shall be computed net of any tax benefit to the Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by the Purchaser with respect to the matter out of which such liability arose. The representations and warranties of Company contained in this Agreement, or any certificate delivered by or on behalf of Company pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for a period until the expiration of any applicable statutes of limitation provided by law (“Survival Period”). Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated. The Purchaser shall provide written notice to Company of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar the Purchaser’s ability to assert any such claim except to the extent that Company are actually prejudiced thereby, provided that such notice is received by Company during the applicable Survival Period. The Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Company under this Article. Defense of Third-Party Claims. With respect to any claim by the Purchaser under Section 7.1, relating to a third party claim or demand, The Purchaser shall provide Company with prompt written notice thereof and Company may defend, in good faith and at its expense, by legal counsel chosen by it and reasonably acceptable to the Purchaser any such claim or demand, and the Purchaser, at its expense, shall have the right to participate in the defense of any such third party claim. So long as Company is defending in good faith any such third party claim, the Purchaser shall not settle or compromise such third party claim. In any event the Purchaser shall cooperate in the settlement or compromise of, or defense against, any such asserted claim.
Appears in 1 contract
Samples: Subscription Agreement (Timberjack Sporting Supplies, Inc.)
Purchaser Claims. From and after the Closing and subject to the provisions of this ArticleSeller will indemnify, the Company agrees to indemnify fully defend and hold harmless Purchaser, its Affiliates and each of their officers, directors, employees, attorneys, agents and successors and assigns (collectively, the "Purchaser Group"), from and against any and all demands, suits, penalties, obligations, damages, claims, demandslosses, liabilities, damages, penalties, judgments, assessments, lossespayments, costs and expenses in any case("Losses"), whether arising under strict liability or otherwise (including reasonable attorneys' fees legal, accounting and expenses) other expenses in connection therewith and costs and expenses incurred in connection with investigations and settlement proceedings, which arise out of, are in connection with or relate to, the following (collectively, "DamagesPurchaser Claims"), resulting fromin each case, arising out ofeven if such Losses are caused by the sole, based on joint or relating to:
(i) concurrent negligence, strict liability or other fault of any person included in the Purchaser Group or any other Person: any breach or violation of any covenant, obligation or inaccuracy in any representation or warranty agreement of the Company Seller set forth in this Agreement or the Ancillary Agreements; any ancillary agreement breach or inaccuracy of the representations or warranties made by Seller in this Agreement or the Ancillary Agreements, whether such representation or warranty is made as of the Effective Date or the Closing Date or in any certificate furnished to be delivered by Seller pursuant hereto; provided that for purposes of determining the Purchaser pursuant to this Agreement;
(ii) any breach amount of any covenant Losses sustained or agreement made by the Company in this Agreement;
(iii) any civil, criminal or administrative action, suit, claim, hearing, investigation or proceeding (including any counterclaims or cross-claims), to which the Company is a party and that is pending on the date hereof or at the Closing, and whether brought, made or instigated by any governmental entity or any private person; or
(iv) Notwithstanding anything in this Agreement to the contraryincurred thereby, for purposes of this ArticleSection 7.1(a) only, such representations and warranties shall be interpreted without giving effect to the words "material", "materially", "Material Adverse Effect", or words of similar effect; provided, further that no indemnity is provided with respect to the second sentence of Section 4.18; Seller's ownership, operation or use of any of the Excluded Assets; the Excluded Liabilities; any Third Party Claim relating to, in connection with or arising out of the ownership, operation or use of any of the Purchased Assets, to the extent relating to any period of time on or prior to the Closing Date; or any other matter relating to the Business or the Purchased Assets, to the extent relating to any period of time on or prior to the Closing Date, or relating to any Excluded Asset or Excluded Liability. Seller Limitations. Subject to paragraph (v) below: The Purchaser Group shall not be entitled to any punitive, incidental, indirect, special or consequential damages included in any Purchaser Claim or otherwise resulting from, in connection with or arising out of this Agreement or the Ancillary Agreements, including such damages for lost revenues, income or profits, diminution in value of the Project or for any other damage or loss resulting from the disruption to or loss of operation of the Project; provided that this limitation shall not apply to any Purchaser Claim for indemnification from any punitive, incidental, indirect, special or consequential damages awarded against Purchaser as a result of a Third Party Claim. The Purchaser Group shall not be entitled to any damages in connection with the termination of this Agreement by Purchaser pursuant to Section 10.1(c), unless at the time of the termination (y) Seller could not or would not deliver to Purchaser title to the Purchased Assets meeting the requirements set forth in Sections 4.10, 4.11, 4.12 and 4.14 or (z) the condition or the functionality of the Purchased Assets does not meet the requirements set forth in Sections 4.13 and 4.26 or is materially and adversely different from the condition or functionality of the Purchased Assets which exists as of the Effective Date. The aggregate damages to which the Purchaser Group shall be entitled under Section 7.1(a) shall be limited to (A) $23,182,676.00 less any Liquidated Damages for Costs and Expenses paid by Seller, with respect to Purchaser Claims asserted before the Closing, (xB) $9,273,070.40, with respect to Purchaser Claims asserted after the Closing through the day before the date that is six months after the Closing Date, (C) $4,636,535.20, with respect to Purchaser Claims asserted on and after the date that is six months after the Closing Date through the date that is one year after the Closing Date and (D) $0 with respect to Purchaser Claims asserted thereafter. The Purchaser Group shall not be entitled to indemnification under Section 7.1(a) for Purchaser Claims for Purchaser General Costs and Expenses for which Liquidated Damages for Costs and Expenses are paid by Seller pursuant to Section 10.3. Notwithstanding the foregoing, (A) the limitations in paragraph (i) shall not apply to any claim for Liquidated Damages for Costs and Expenses; (B) the limitations in paragraph (ii) above shall not apply to Purchaser Claims following a termination for or in connection with a breach of a representation Section 6.15 or warranty shall be deemed to exist either if such representation or warranty is actually inaccurate or breached or would have been inaccurate or breached if such representation or warranty had not contained any limitation or qualification as to Knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language, claim for Liquidated Damages for Costs and Expenses and (yC) the amount of Damages limitations in respect of any breach of a representation or warranty paragraph (including any deemed breach resulting from the application of clause (x)iii) shall be determined without regard not apply to any limitation or qualification as to knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language set forth in such representation or warranty, it being the intention of the parties hereto that (except as otherwise set forth in this Article) Purchaser shall be indemnified and held harmless from and against any and all Damages suffered or incurred by it Claims resulting from, in connection with or arising out of, based on or relating to the failure of any representation fraudulent act or warranty to be true, correct and complete in any respect, determined in each case without regard to any qualification as to Knowledge, materiality or Material Adverse Effect or similar language set forth with respect theretointentional breach by Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Entergy Gulf States Inc)
Purchaser Claims. From and after the Closing and subject to the provisions of this ArticleSeller shall indemnify, the Company agrees to indemnify fully defend and hold harmless Purchaser, its parents and Affiliates, and each of their officers, directors, employees, attorneys, agents and successors and assigns (collectively, the "Purchaser Group"), from and against any and all demands, suits, penalties, obligations, damages, claims, demandslosses, liabilities, damages, penalties, judgments, assessments, lossespayments, costs and expenses in any case("Losses"), whether arising under strict liability or otherwise (including reasonable attorneys' fees legal, accounting and expenses) other expenses in connection therewith and costs and expenses incurred in connection with investigations and settlement proceedings, which arise out of, are in connection with, or relate to, the following (collectively, "DamagesPurchaser Claims"), resulting fromin each case, arising out ofeven if such Losses are caused by the sole, based on joint or relating toconcurrent negligence, strict liability or other fault of any Person included in the Purchaser Group or any other Person, except, in the case of any Purchaser Claims under clause (iv), (v), (vi) or (vii) of this Section 7.1(a), to the extent caused by the intentional misconduct or gross negligence of such Person included in the Purchaser Group:
(i) any breach or violation of any covenant, obligation or inaccuracy agreement of Seller set forth in any representation or warranty of the Company in this Agreement or any ancillary agreement or in any certificate furnished to the Purchaser pursuant to this Agreement;
(ii) any breach or inaccuracy of any covenant of the representations or agreement warranties made by the Company in this Agreement;
(iii) any civil, criminal or administrative action, suit, claim, hearing, investigation or proceeding (including any counterclaims or cross-claims), to which the Company is a party and that is pending on the date hereof or at the Closing, and whether brought, made or instigated by any governmental entity or any private person; or
(iv) Notwithstanding anything Seller in this Agreement to in ARTICLE 4 or by Guarantor in the contraryGuaranty, provided that for purposes of this Article, (x) determining whether there has been a misrepresentation or breach of a representation or warranty shall be deemed to exist either if such representation or warranty is actually inaccurate or breached or would have been inaccurate or breached if such representation or warranty had not contained any limitation or qualification as to Knowledge, materiality, Material Adverse Effect (which instead will be read as any adverse effect or change) or similar language, and (y) the amount of Damages in respect Losses sustained or incurred thereby, for purposes of any breach of a representation or warranty (including any deemed breach resulting from the application of clause (x)this Section 7.1(a) only, such representations and warranties shall be determined interpreted without regard giving effect to any limitation or qualification as to knowledgethe words "material", materiality"materially", "Material Adverse Effect Effect", or words of similar effect;
(which instead will be read as any adverse effect or changeiii) or similar language set forth in such representation or warrantyif the Closing occurs, it being the intention of the parties hereto that (except as otherwise set forth in this Article) Purchaser shall be indemnified and held harmless from and against any and all Damages suffered Environmental Losses to the extent relating to any period of time on or incurred by it resulting from, prior to the Closing Date and directly or indirectly arising out of, based on of or relating to any emissions of NOx in excess of the limitations of or non-compliance with the limitations or other terms or requirements of Seller's NOx emissions permit;
(iv) if the Closing occurs, Seller's ownership, operation or use of any of the Excluded Assets;
(v) if the Closing occurs, the failure of Seller to pay, perform or discharge any representation of the Excluded Liabilities (other than an Excluded Design Liability) as and when due;
(vi) if the Closing occurs, any Third Party Claim relating to or warranty arising out of the ownership, operation or use of any of the Purchased Assets, including the Project to be true, correct and complete in any respect, determined in each case without regard the extent relating to any qualification as period of time on or prior to Knowledgethe Closing Date; or
(vii) if the Closing occurs, materiality any other matter relating to the Business or Material Adverse Effect the Purchased Assets, to the extent relating to any period of time on or similar language set forth with respect theretoprior to the Closing Date, or relating to any Excluded Asset or Excluded Liability (other than an Excluded Design Liability).
Appears in 1 contract
