Survival and Limitations. (a) All representations and warranties in this Agreement and any other certificate or document delivered pursuant to this Agreement will survive the Closing until the later of the (A) first anniversary of the Closing Date and (B) August 31, 1998 (the "Sunset Period"); provided, however, that the representations and warranties set forth in (i) SECTIONS 4.1(c) shall survive indefinitely and (ii) SECTIONS 4.10 AND 4.12 shall survive until expiration of all applicable statutes of limitations (including amendments extending said statutes). Notwithstanding the foregoing, a representation and warranty shall continue in effect in the event a claim for breach thereof has been made prior to the expiration of the applicable survival period and shall survive until such claim is resolved. The right to indemnification, reimbursement, or other remedy based on such representations and warranties will not be affected by any investigation conducted by Buyer (unless Buyer breaches, in any material respect, the terms set forth in SECTION 6.1(b)). Unless a specified period is set forth in this Agreement (in which event such specified period will control), all agreements and covenants contained in this Agreement will survive the Closing and remain in effect indefinitely. (b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this SECTION 13.1), Seller shall not be liable hereunder to Buyer as a result any Breach of any representation, warranty, covenant or agreement contained in this Agreement, unless and until the Losses incurred by all Buyer Indemnified Parties as a result of such misrepresentations under this Agreement shall exceed, in the aggregate, $250,000 (the "Basket Threshold") and once the Basket Threshold is reached, Seller shall fully indemnify all Buyer Indemnified Parties for all Losses in excess of the Basket Threshold. The parties agree that the maximum liability of Seller for any Losses of Buyer shall not exceed, in the aggregate, $2,000,000 (the "Cap"). (c) Notwithstanding the above, the Cap and Basket Threshold shall in no event apply to any Losses incurred by a Buyer Indemnified Party which relate, directly or indirectly, to (i) an indemnification obligation under SECTIONS 13.2(b), 13.2(d), 13.2(e) OR 13.2(f), (ii) any Losses relating to the Seller's obligations set forth in SECTION 15.1 below to pay for its own expenses in connection with the Contemplated Transactions, (iii) any fraudulent acts committed by Seller, (iv) any amounts due to Buyer which are held in the Xxxxx Xxx Escrow, (v) any amounts due to Buyer pursuant to ARTICLE XII hereof and (vi) a Breach by Seller of the representations and warranties contained in SECTIONS 4.1(c), 4.10 OR 4.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (K Tel International Inc), Purchase and Sale Agreement (Platinum Entertainment Inc)
Survival and Limitations. (a) All The covenants, agreements, representations and warranties in this Agreement and the Schedules attached hereto or in any writing delivered by any part to any of the other certificate or document delivered pursuant to this Agreement will parties in connection herewith shall survive the Closing until as follows:
(a) the later of the (A) first anniversary of the Closing Date and (B) August 31, 1998 (the "Sunset Period"); provided, however, that the representations representation and warranties set forth in Section 5.16 (i) SECTIONS 4.1(cTaxes) shall survive indefinitely and (ii) SECTIONS 4.10 AND 4.12 shall survive until expiration of all terminate when the applicable statutes of limitations with respect to the Liabilities in question expire (including amendments extending said statutesgiving effect to any extensions or waivers thereof). Notwithstanding , plus sixty (60) days;
(b) the representation and warranties in Section 5.1 (Good Standing; Power), Section 5.2 (Authorization; Binding Obligations), Section 5.4 (No Conflicts; Consents), Section 5.9 (Title to Assets), Section 5.12 (Online Marketplaces), Section 5.14 (Intellectual Property) and Section 5.22 (No Brokers or Finders) (collectively, the “Fundamental Representations”), Section 6.1 (Formation; Good Standing), Section 6.2 (Authorization; Binding Obligations), Section 6.3 (No Conflicts; Consent) shall not terminate and shall survive for the longest duration enforceable under Delaware law;
(c) any claim for breach of any covenant, or asserted on fraud or for which specific performance or non-monetary equitable relief is available, shall not terminate and shall survive indefinitely; and
(d) all other representations and warranties in this Agreement and the Schedules attached hereto or in any writing delivered by Seller in connection with this Agreement shall terminate on the date that is twenty-four (24) months from the Closing Date; provided, that notwithstanding the foregoing, a representation any claim asserted in good faith and warranty shall continue in effect in writing by notice from the event a claim for breach thereof has been made non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claim shall survive until such claim is finally resolved. The right to indemnification, reimbursement, or other remedy based on such representations All covenants and warranties will not be affected by any investigation conducted by Buyer (unless Buyer breaches, in any material respect, agreements of the terms set forth in SECTION 6.1(b)). Unless a specified period is set forth in this Agreement (in which event such specified period will control), all agreements and covenants Parties contained in this Agreement will shall survive the Closing and remain in effect indefinitelyfor the period(s) explicitly stated therein.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this SECTION 13.1), Seller shall not be liable hereunder to Buyer as a result any Breach of any representation, warranty, covenant or agreement contained in this Agreement, unless and until the Losses incurred by all Buyer Indemnified Parties as a result of such misrepresentations under this Agreement shall exceed, in the aggregate, $250,000 (the "Basket Threshold") and once the Basket Threshold is reached, Seller shall fully indemnify all Buyer Indemnified Parties for all Losses in excess of the Basket Threshold. The parties agree that the maximum liability of Seller for any Losses of Buyer shall not exceed, in the aggregate, $2,000,000 (the "Cap").
(c) Notwithstanding the above, the Cap and Basket Threshold shall in no event apply to any Losses incurred by a Buyer Indemnified Party which relate, directly or indirectly, to (i) an indemnification obligation under SECTIONS 13.2(b), 13.2(d), 13.2(e) OR 13.2(f), (ii) any Losses relating to the Seller's obligations set forth in SECTION 15.1 below to pay for its own expenses in connection with the Contemplated Transactions, (iii) any fraudulent acts committed by Seller, (iv) any amounts due to Buyer which are held in the Xxxxx Xxx Escrow, (v) any amounts due to Buyer pursuant to ARTICLE XII hereof and (vi) a Breach by Seller of the representations and warranties contained in SECTIONS 4.1(c), 4.10 OR 4.
Appears in 1 contract
Survival and Limitations. (a) All representations and warranties in this Agreement and any other certificate or document delivered pursuant Except with respect to this Agreement will survive the Closing until the later of the (A) first anniversary of the Closing Date and (B) August 31, 1998 (the "Sunset Period"); provided, however, that the representations and warranties set forth in (i) SECTIONS 4.1(c) shall survive indefinitely and (ii) SECTIONS 4.10 AND 4.12 shall survive until expiration of all applicable statutes of limitations (including amendments extending said statutes). Notwithstanding the foregoing, a representation and warranty shall continue in effect in the event a claim for breach thereof has been made prior to the expiration of the applicable survival period and shall survive until such claim is resolved. The right to indemnification, reimbursement, or other remedy based on such representations and warranties will not be affected by any investigation conducted by Buyer (unless Buyer breaches, in any material respect, the terms set forth in SECTION 6.1(b)). Unless a specified period is set forth in this Agreement (in which event such specified period will control), all agreements and covenants contained in this Agreement will survive the Closing and remain in effect indefinitely.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this SECTION 13.1), Seller shall not be liable hereunder to Buyer as a result any Breach of any representation, warranty, covenant or agreement contained in this Agreement, unless and until the Losses incurred by all Buyer Indemnified Parties as a result of such misrepresentations under this Agreement shall exceed, in the aggregate, $250,000 (the "Basket Threshold") and once the Basket Threshold is reached, Seller shall fully indemnify all Buyer Indemnified Parties for all Losses in excess of the Basket Threshold. The parties agree that the maximum liability of Seller for any Losses of Buyer shall not exceed, in the aggregate, $2,000,000 (the "Cap").
(c) Notwithstanding the above, the Cap and Basket Threshold shall in no event apply to any Losses incurred by a Buyer Indemnified Party which relate, directly or indirectly, to (i) an indemnification obligation under SECTIONS 13.2(b), 13.2(d), 13.2(e) OR 13.2(f), (ii) any Losses relating to the Seller's obligations set forth in SECTION 15.1 below to pay for its own expenses in connection with the Contemplated Transactions, (iii) any fraudulent acts committed by Seller, (iv) any amounts due to Buyer which are held in the Xxxxx Xxx Escrow, (v) any amounts due to Buyer pursuant to ARTICLE XII hereof and (vi) a Breach by Seller of the representations and warranties contained in SECTIONS 4.1(c)Sections 3.3(b) and 3.11, 4.10 OR 4the representations and warranties of North Sky and the Stockholders set forth in Article 3 above and the indemnification obligations set forth in this Article 8 with respect to such representations and warranties of North Sky and the Stockholders (i) shall survive the Effective Date and the consummation of the transactions contemplated hereby and continue for a period of twelve (12) months after the Effective Date and (ii) shall not be affected by any examination made for or on behalf of Xxxxx.xxx or AAC or the knowledge of any of Xxxxx.xxx's or AAC's officers, directors, stockholders, employees or agents.
(b) The representations and warranties of North Sky set forth in Section 3.11 shall survive the Effective Date and the consummation of the transactions contemplated hereby and shall continue for seven (7) years in full force and effect in accordance with their terms.
(c) The representations and warranties of North Sky set forth in Section 3.3(b) hereof shall survive the Effective Date and the consummation of the transactions contemplated hereby and shall continue for three (3) years in full force and effect in accordance with their terms.
(d) The representations and warranties of Xxxxx.xxx and AAC set forth in Article 2 above shall survive the Effective Date and the consummation of the transactions contemplated hereby and continue for a period of twelve (12) months after the Effective Date.
(e) Except with respect to the representations and warranties of North Sky set forth in Sections 3.3(b) and 3.11 hereof, and except as set forth in Section 8.4(f) hereof, the date on which any particular representation, warranty or indemnification obligation of any party hereto terminates shall be referred to herein and in the Escrow Agreement as the "Termination Date". If a notice of a claim is given in accordance with the notice provisions of this Agreement or the Escrow Agreement before the Termination Date, then (notwithstanding the occurrence of the Termination Date) the representation, warranty or indemnification obligation applicable to such claim shall survive until, but only for purposes of, the resolution of such claim.
(f) The indemnification obligations contained in Sections 8.1(c) and 8.2(b) hereof shall survive until the termination of the statute of limitations with respect thereto.
Appears in 1 contract
Samples: Merger Agreement (About Com Inc)
Survival and Limitations. (a) All representations and warranties in this Agreement and any other certificate or document delivered pursuant to this Agreement will survive the Closing until the later of the (A) first anniversary of the Closing Date and (B) August 31, 1998 (the "Sunset Period"); provided, however, that the at which time such representations and warranties set forth in (i) SECTIONS 4.1(c) shall survive indefinitely and (ii) SECTIONS 4.10 AND 4.12 shall survive until expiration of all applicable statutes of limitations (including amendments extending said statutes)terminate. Notwithstanding the foregoing, a representation and warranty shall continue in effect in the event a claim for breach thereof has been made prior to the expiration of the applicable survival period Sunset Period and shall survive until such claim is fully resolved. The right to indemnification, reimbursement, or other remedy based on such representations and warranties will not be affected by any investigation conducted by Buyer (unless Buyer breaches, in any material respect, the terms set forth in SECTION 6.1(b)). Unless a specified period is set forth in this Agreement (in which event such specified period will control), all agreements and covenants contained in this Agreement will survive the Closing and remain in effect indefinitelyBuyer.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this SECTION 13.1set forth in Section 14.1(d), Seller shall not be liable hereunder to a Buyer Indemnified Party as a result of any Breach misrepresentation or breach of any representation, warranty, warranty or covenant or agreement contained in this Agreement, Agreement unless a claim with respect thereto has been made prior to the expiration of the Sunset Period and not until the aggregate amount of the Losses incurred by all the Buyer Indemnified Parties (in the aggregate) as a result of such any misrepresentations or breaches under this Agreement shall exceed, in the aggregate, exceeds $250,000 (the "Basket Threshold") and once ); provided, however, that the Basket Threshold is reachedshall not apply to (i) any Losses for which an indemnification obligation under Section 14.2(d) or (e) would apply, (ii) any Losses which relate to third party claims which are Excluded Liabilities, (iii) any Losses which relate to third party suits or causes of action which are known by Seller shall fully indemnify all to be pending or Threatened as of the Closing Date, (iv) any Losses which relate to claims by the Xxxxx Xxx Agency (except to the extent of the Assumed Fox Liability), and (v) any Losses relating to the Seller's obligations set forth in Section 16.1 below to pay for their own expenses in connection with the Contemplated Transactions. Subject to (i) through (v) above, as soon as the Buyer Indemnified Parties for all Losses in excess of the Basket Threshold. The parties agree that the maximum liability of Seller for any Losses of Buyer shall not exceed, incur (in the aggregate) a total of $250,000 of Losses, $2,000,000 subject to the terms of Section 14.1(a) above, any and all further Losses (regardless of the "Cap")amount of any such further Losses) shall be subject to indemnification pursuant to the terms of Section 14.2.
(c) Notwithstanding anything to the abovecontrary set forth in this Agreement, but subject to the provisions of subparagraph (d) below of this Section 14.1, following the Closing, the aggregate liability of Seller to the Buyer Indemnified Parties shall not exceed $1,875,000 ("Cap"). Further, the Seller shall have no indemnification obligation to satisfy any claim for Losses of the Buyer Indemnified Parties other than through recourse against the Convertible Debentures (or underlying securities to the extent converted) held in escrow pursuant to the Indemnity Escrow Agreement.
(d) Each of the limitations set forth in subparagraphs (a), (b) and (c) above (including, without limitation, the Sunset Period, the Cap and Basket Threshold the Basket) shall in no event apply to any Losses incurred by a Buyer Indemnified Party which relateParty, directly or indirectly, as a result of (i) a breach of the representations and warranties contained in the third and fifth sentences of Section 5.5 above, (ii) any claims by any third parties relating, directly or indirectly, to any audit or investigation of Seller (i) an indemnification obligation under SECTIONS 13.2(b), 13.2(d), 13.2(e) OR 13.2(f), (ii) any Losses relating or the business or operations conducted by Seller prior to the Seller's obligations set forth in SECTION 15.1 below Closing Date) by the Xxxxx Xxx Agency for any period prior to pay the Closing Date, except for its own expenses in connection with the Contemplated Transactions, Assumed Fox Liability or (iii) any fraudulent acts committed by Seller or any officer, director, employee, agent or shareholder of Seller, (iv) any amounts due to Buyer which are held in the Xxxxx Xxx Escrow, (v) any amounts due to Buyer pursuant to ARTICLE XII hereof and (vi) a Breach by Seller of the representations and warranties contained in SECTIONS 4.1(c), 4.10 OR 4.
Appears in 1 contract
Samples: Asset Purchase Agreement (Platinum Entertainment Inc)
Survival and Limitations. (a) All representations and warranties in this Agreement and Except as otherwise expressly provided herein, any other certificate or document delivered pursuant to this Agreement will survive the Closing until the later claims for breach of the representations, warranties, covenants and claims under the indemnities of Seller contained herein shall be made within two hundred seventy (A270) first anniversary of days following the Closing Date and (B) August 31, 1998 (the "Sunset “Survival Period"”), otherwise they shall irrevocably be deemed to have been waived by Buyer. Notwithstanding the foregoing or anything to the contrary herein, Seller acknowledges and agrees that the resolution of such claim may not occur until after the expiration of the Survival Period and the Survival Period shall be deemed to be tolled with respect to (and only with respect to) any claim of which Seller receives notice before the expiration of the Survival Period. Seller shall have no liability to Buyer for any breach of such representations, warranties, covenants or under any indemnities of Seller contained herein (other than as set forth below in the penultimate sentence of this Section 12.2) unless and until Buyer’s actual out-of-pocket loss from such breach and/or under such indemnities (or aggregate losses from all such breaches and/or under such indemnities) exceeds $50,000 (at which point Seller shall be liable for the full amount of the damages, including the $50,000); provided, howeverand provided further, that in no event shall Seller’s aggregate liability to Buyer for all such breaches and/or under such indemnities (other than as set forth below in the penultimate sentence of this Section 12.2) exceed two percent (2%) of the Purchase Price. Buyer hereby acknowledges and agrees that if the Closing occurs under this Agreement, then Buyer's remedies set forth in this Article XII, and subject in all events to the limitations and restrictions set forth herein, shall be Buyer's sole and exclusive remedy against Seller (or any Affiliate of Seller) for any breach or default or alleged breach or default by Seller (or any Affiliate of Seller) or claim for indemnification against Seller (or any Affiliate of Seller) under this Agreement or in connection with any matter related to the Transaction, and that in no event shall Buyer have the right to initiate any other action or remedy against Seller (or any Affiliate of Seller) in connection this Agreement or in connection with any matter related to the Transaction, including, without limitation any claim for rescission of its acquisition of the Property. Except as set forth in the Side Letter, each party hereto hereby waives its rights to recover from the other party indirect, punitive, exemplary, and speculative damages. For the avoidance of doubt, the Survival Period and the foregoing 2% liability cap and $50,000 basket shall not apply to any breach by Seller of the representations and warranties set forth in (i) SECTIONS 4.1(c) shall survive indefinitely and (ii) SECTIONS 4.10 AND 4.12 shall survive until expiration Section 15.11, any breach by Seller of all applicable statutes of limitations (including amendments extending said statutes). Notwithstanding the foregoing, a representation and warranty shall continue in effect in the event a claim for breach thereof has been made prior to the expiration of the applicable survival period and shall survive until such claim is resolved. The right to indemnification, reimbursement, any post-Closing covenant or other remedy based on such representations and warranties will not be affected by any investigation conducted by Buyer (unless Buyer breaches, in any material respect, the terms agreement set forth in SECTION 6.1(b)). Unless a specified period is set forth in this Agreement (in which event such specified period will controlSection 4.28(b), all agreements and covenants contained in this Agreement will survive the Section 6.2, Section 15.13, Section 15.14, Section 15.19 or any Closing and remain in effect indefinitely.
(b) Notwithstanding anything adjustments or prorations to the contrary set forth in this Agreement (but subject be made pursuant to the terms Article XIV of this SECTION 13.1), Seller Agreement. This Section 12.2 shall not be liable hereunder to Buyer as a result any Breach survive Closing or Termination of any representation, warranty, covenant or agreement contained in this Agreement, unless and until the Losses incurred by all Buyer Indemnified Parties as a result of such misrepresentations under this Agreement shall exceed, in the aggregate, $250,000 (the "Basket Threshold") and once the Basket Threshold is reached, Seller shall fully indemnify all Buyer Indemnified Parties for all Losses in excess of the Basket Threshold. The parties agree that the maximum liability of Seller for any Losses of Buyer shall not exceed, in the aggregate, $2,000,000 (the "Cap").
(c) Notwithstanding the above, the Cap and Basket Threshold shall in no event apply to any Losses incurred by a Buyer Indemnified Party which relate, directly or indirectly, to (i) an indemnification obligation under SECTIONS 13.2(b), 13.2(d), 13.2(e) OR 13.2(f), (ii) any Losses relating to the Seller's obligations set forth in SECTION 15.1 below to pay for its own expenses in connection with the Contemplated Transactions, (iii) any fraudulent acts committed by Seller, (iv) any amounts due to Buyer which are held in the Xxxxx Xxx Escrow, (v) any amounts due to Buyer pursuant to ARTICLE XII hereof and (vi) a Breach by Seller of the representations and warranties contained in SECTIONS 4.1(c), 4.10 OR 4.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Hospitality Trust, Inc.)
Survival and Limitations. (a) All representations and warranties Unless otherwise specified in this Agreement and any other certificate Section 7.4 or document delivered pursuant to elsewhere in this Agreement, all provisions of this Agreement will shall survive the Closing until Effective Date and the later consummation of the transactions contemplated hereby and shall continue forever in full force and effect in accordance with their terms.
(Ab) first anniversary of the Closing Date and (B) August 31, 1998 (the "Sunset Period"); provided, however, that Except for the representations and warranties of Telxon set forth in Section 2.13 and Section 2.22, the representations and warranties of Telxon set forth in Article II above and the indemnification obligations set forth in this Article VII with respect to such representations and warranties of Telxon (except for Section 2.13 and Section 2.22) (i) SECTIONS 4.1(c) shall survive indefinitely the Effective Date and the consummation of the transactions contemplated hereby and continue for a period of twelve (12) months after March 31, 1998 and (ii) SECTIONS 4.10 AND 4.12 shall survive until expiration of all applicable statutes of limitations (including amendments extending said statutes). Notwithstanding the foregoing, a representation and warranty shall continue in effect in the event a claim for breach thereof has been made prior to the expiration of the applicable survival period and shall survive until such claim is resolved. The right to indemnification, reimbursement, or other remedy based on such representations and warranties will not be affected by any investigation conducted by Buyer examination made for or on behalf of FED or the knowledge of any of FED's officers, directors, stockholders, employees or agents.
(unless Buyer breaches, in any material respect, the terms c) The representations and warranties of Telxon set forth in SECTION 6.1(b)). Unless a specified period is Section 2.13 and Section 2.22 shall survive the Effective Date and the consummation of the transactions contemplated hereby and shall continue for seven (7) years in full force and effect in accordance with their terms.
(d) The representations and warranties of FED set forth in Article III above and the indemnification obligations set forth in this Agreement Article VII with respect to such representations and warranties of FED (in which event such specified period will control), all agreements and covenants contained in this Agreement will i) shall survive the Closing Effective Date and remain in effect indefinitelythe consummation of the transactions contemplated hereby and continue for a period of twelve (12) months after March 31, 1998 and (ii) shall not be affected by any examination made for or on behalf of Telxon or the knowledge of any of Telxon's officers, directors, stockholders, employees or agents.
(be) The date on which any particular representation, warranty or indemnification obligation of Telxon or FED terminates shall be referred to herein and in the Escrow Agreement as the "TERMINATION DATE". If a notice of a claim is given in accordance with the notice provisions of this Agreement or the Escrow Agreement before the Termination Date, then (notwithstanding the occurrence of the Termination Date) the representation, warranty or indemnification obligation applicable to such claim shall survive until, but only for purposes of, the resolution of such claim.
(f) If at any time Escrow Shares (as defined in the Escrow Agreement) are to be released to FED in consideration for any Key Employee of Virtual who leaves the employ of Virtual on or prior to the Termination Date, Telxon's indemnification obligations under this Article VII shall increase by such equivalent number of shares of Series F Preferred Stock (or cash representing such number of shares of Series F Preferred Stock) then held by Telxon.
(g) Notwithstanding anything to the contrary herein, neither party shall be liable under this Article VII unless and until the aggregate Damages (without giving effect to any materiality EXECUTION COPY -------------- or material adverse effect qualifications or materiality exceptions contained in any provision of this Agreement) exceed Twenty Thousand Dollars ($20,000) (at which point such party shall become liable for the aggregate Damages, and not just amounts in excess of Twenty Thousand Dollars ($20,000)). Except with respect to (i) claims based on gross negligence, willful misconduct or fraud, (ii) claims made under Section 7.1(b) or 7.2(b) hereof, and (iii) the obligations of Telxon set forth in Section 7.4(c) and Section 7.4(f) hereof, (A) the indemnification obligations of Telxon in favor of FED under this Agreement (but subject Article VII with respect to all representations and warranties of Telxon other than pursuant to Section 2.13 and Section 2.22 shall be limited solely to the amounts held pursuant to the terms of the Escrow Agreement, (B) the indemnification obligations of FED in favor of Telxon under this SECTION 13.1Article VII with respect to all representations and warranties of FED shall be limited to One Hundred Thousand Dollars ($100,000); provided that nothing herein shall limit Telxon's indemnification rights under the Series F Agreement, (C) any indemnification obligations of Telxon in favor of FED under this Article VII with respect to Section 2.13, Section 2.22 or any other matter shall be payable by Telxon in shares of FED capital stock or cash (at the sole option of Telxon), Seller shall not be liable hereunder to Buyer as a result any Breach and (D) the rights of any representation, warranty, covenant or agreement contained in this Agreement, unless and until the Losses incurred by all Buyer Indemnified Parties as a result of such misrepresentations parties under this Article VII and under the Escrow Agreement shall exceedbe the exclusive remedy of the parties with respect to matters covered by this Article VII. Except with respect to Telxon's obligations under Section 7.4(c), in the aggregate, $250,000 (the "Basket Threshold") and once the Basket Threshold is reached, Seller shall fully indemnify all Buyer Indemnified Parties for all Losses in excess furtherance of the Basket Threshold. The foregoing, each of the parties agree that the maximum liability of Seller for any Losses of Buyer shall not exceed, in the aggregate, $2,000,000 (the "Cap").
(c) Notwithstanding the above, the Cap and Basket Threshold shall in no event apply to any Losses incurred by a Buyer Indemnified Party which relate, directly or indirectlyhereto hereby waives, to (i) an indemnification obligation the fullest extent permitted under SECTIONS 13.2(b)applicable law, 13.2(d)any and all other rights, 13.2(e) OR 13.2(f)claims and causes of action it may have, (ii) any Losses from and after the Termination Date, against the other party or their respective officers, directors, employees, agents, representatives and Affiliates, relating to the Seller's obligations set forth in SECTION 15.1 below to pay for its own expenses in connection with the Contemplated Transactions, (iii) any fraudulent acts committed by Seller, (iv) any amounts due to Buyer which are held in the Xxxxx Xxx Escrow, (v) any amounts due to Buyer pursuant to ARTICLE XII hereof and (vi) a Breach by Seller breach of the representations and warranties contained in SECTIONS 4.1(c)this Agreement.
(h) The Indemnified Party shall take all commercially reasonable steps to mitigate damages in respect of any claim for which it is seeking indemnification, 4.10 OR 4including, without limitation, using commercially reasonable efforts to effect recovery of available insurance claims in connection with such claim, and shall use commercially reasonable efforts to avoid any costs or expenses associated with such claim and, if such costs and expenses cannot be avoided, to minimize the amount thereof.
Appears in 1 contract
Survival and Limitations. (ai) All The parties agree that Seller’s representations and warranties contained in this Agreement and in any other certificate or document delivered executed by Seller pursuant to this Agreement will survive the Closing until the later shall expire and shall be of the no further force or effect as of twelve (A12) first anniversary of months following the Closing Date and (B) August 31, 1998 (the "Sunset “Limitation Period"); provided, however, that the representations and warranties set forth in (i) SECTIONS 4.1(c) shall survive indefinitely and (ii) SECTIONS 4.10 AND 4.12 shall survive until expiration of all applicable statutes of limitations (including amendments extending said statutes”). Notwithstanding If Buyer, within the foregoingLimitation Period, a representation gives notice to Seller of any breach of such representations or warranties or any Post-Closing Default (the “Notice”), and warranty if Seller fails to cure such breach or Post-Closing Default, as the case may be, within sixty (60) days following the giving of such Notice (or, if such breach or Post-Closing Default cannot reasonably be cured within sixty (60) days, Seller shall continue in effect in the event a claim for breach thereof be provided with an additional reasonable time period to cure such breach, so long as such cure has been made commenced within such sixty (60) days and has been diligently pursued), then Buyer’s sole remedy shall be an action at law for damages as a consequence thereof, which must be commenced, if at all, prior to the expiration of the applicable survival period and shall survive until such claim is resolvedOverall Limitation Period (defined below). The Limitation Period shall apply to known as well as unknown breaches of such representations or warranties; provided that, consent to the Closing by Buyer or Seller shall be deemed to constitute a waiver of any breach of which Buyer had actual knowledge as of the Closing Date. Buyer shall not have the right to indemnification, reimbursement, bring a cause of action for a breach of a representation or warranty unless the claim against Buyer on account of such breach (individually or when combined with claims from other remedy based on such breaches) equals or exceeds $250,000.00 and Buyer agrees that the post-Closing maximum liability of Seller for the alleged breach of any or all representations and or warranties will not be affected by any investigation conducted by Buyer (unless Buyer breaches, in any material respect, the terms set forth in SECTION 6.1(b)). Unless a specified period is set forth in this Agreement (in which event such specified period will control), all agreements and covenants contained in this Agreement will survive the and/or any Post-Closing and remain in effect indefinitely.
(b) Notwithstanding anything Default is limited to the contrary $10,470,000.00 as more particularly set forth in this Agreement (but subject to the terms of this SECTION 13.1), Seller shall not be liable hereunder to Buyer as a result any Breach of any representation, warranty, covenant or agreement contained in this Agreement, unless and until the Losses incurred by all Buyer Indemnified Parties as a result of such misrepresentations under this Agreement shall exceed, in the aggregate, $250,000 (the "Basket Threshold"Section 14(q)(ii) and once the Basket Threshold is reached, Seller shall fully indemnify all Buyer Indemnified Parties for all Losses in excess of the Basket Threshold. The parties agree that the maximum liability of Seller for any Losses of Buyer shall not exceed, in the aggregate, $2,000,000 (the "Cap")immediately below.
(c) Notwithstanding the above, the Cap and Basket Threshold shall in no event apply to any Losses incurred by a Buyer Indemnified Party which relate, directly or indirectly, to (i) an indemnification obligation under SECTIONS 13.2(b), 13.2(d), 13.2(e) OR 13.2(f), (ii) any Losses relating to the Seller's obligations set forth in SECTION 15.1 below to pay for its own expenses in connection with the Contemplated Transactions, (iii) any fraudulent acts committed by Seller, (iv) any amounts due to Buyer which are held in the Xxxxx Xxx Escrow, (v) any amounts due to Buyer pursuant to ARTICLE XII hereof and (vi) a Breach by Seller of the representations and warranties contained in SECTIONS 4.1(c), 4.10 OR 4.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (RLJ Lodging Trust)
Survival and Limitations. (a) All Unless otherwise specified in this Section 7.3, all provisions of this Agreement shall survive the Closing and the consummation of the transactions contemplated hereby and shall continue forever in full force and effect in accordance with their terms.
(b) The representations and warranties and covenants and agreements of MODE and the Principal MODE Stockholders set forth in Articles II, III and V above (other than the representations and warranties of MODE set forth in Section 2.11 and the indemnification obligations set forth in this Agreement and any other certificate or document delivered pursuant to this Agreement will Article VII relating thereto) (i) shall survive the Closing until and the later consummation of the transactions contemplated hereby and continue for a period of six (A6) first anniversary of months after the Closing Date and (B) August 31, 1998 (the "Sunset Period"); provided, however, that the representations and warranties set forth in (i) SECTIONS 4.1(cii) shall survive indefinitely and (ii) SECTIONS 4.10 AND 4.12 shall survive until expiration of all applicable statutes of limitations (including amendments extending said statutes). Notwithstanding the foregoing, a representation and warranty shall continue in effect in the event a claim for breach thereof has been made prior to the expiration of the applicable survival period and shall survive until such claim is resolved. The right to indemnification, reimbursement, or other remedy based on such representations and warranties will not be affected by any investigation conducted by Buyer (unless Buyer breaches, in any material respect, examination made for or on behalf of Emcore or the terms set forth in SECTION 6.1(b)). Unless a specified period is set forth in this Agreement (in which event such specified period will control), all agreements and covenants contained in this Agreement will survive the Closing and remain in effect indefinitely.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this SECTION 13.1), Seller shall not be liable hereunder to Buyer as a result any Breach knowledge of any representationof Emcore's officers, warrantydirectors, covenant stockholders, employees or agreement contained in this Agreement, unless and until the Losses incurred by all Buyer Indemnified Parties as a result of such misrepresentations under this Agreement shall exceed, in the aggregate, $250,000 (the "Basket Threshold") and once the Basket Threshold is reached, Seller shall fully indemnify all Buyer Indemnified Parties for all Losses in excess of the Basket Threshold. The parties agree that the maximum liability of Seller for any Losses of Buyer shall not exceed, in the aggregate, $2,000,000 (the "Cap")agents.
(c) Notwithstanding The representations and warranties of MODE set forth in Section 2.11 of Article II above and the above, the Cap and Basket Threshold shall in no event apply to any Losses incurred by a Buyer Indemnified Party which relate, directly or indirectly, to (i) an indemnification obligation under SECTIONS 13.2(b), 13.2(d), 13.2(e) OR 13.2(f), (ii) any Losses relating to the Seller's obligations set forth in SECTION 15.1 below this Article VII relating thereto (i) shall survive the Closing and the consummation of the transactions contemplated hereby and continue until the longer of (A) six (6) months after the Closing Date or (B) the earlier of (x) such time as the Surviving Corporation or Emcore shall have entered into a license agreement, in form and substance similar to pay the license agreement described in Section 2.11 (a) of the Disclosure Schedule, and such license agreement shall be in full force and effect, or (y) twelve (12) months after the Closing Date, and (ii) shall not be affected by any disclosure contained in the Disclosure Schedule or otherwise made by MODE or any other person relating to the license agreement or any examination made for its own expenses or on behalf of Emcore or the knowledge of any of Emcore's officers, directors, stockholders, employees or agents.
(d) The date on which any particular representation, warranty or indemnification obligation of the Principal MODE Stockholders terminates shall be referred to herein and in connection the Escrow Agreement as the "Termination Date." If a notice of a claim is given in accordance with the Contemplated Transactionsnotice provisions of this Agreement or the Escrow Agreement before the Termination Date, then (iiinotwithstanding the occurrence of the Termination Date) the representation, warranty or indemnification obligation applicable to such claim shall survive until, but only for purposes of, the resolution of such claim. Neither Emcore nor the Principal MODE Stockholders shall have any fraudulent acts committed by Sellerobligation to indemnify or hold each other harmless with respect to any Damages resulting from, (iv) relating to or constituting any amounts due misrepresentation, breach of warranty or failure to Buyer which are held in the Xxxxx Xxx Escrowperform any covenant or agreement of Emcore, (v) any amounts due to Buyer MODE or a MODE Principal Stockholder, as applicable, unless written notice of such claim is made pursuant to ARTICLE XII Section 7.2 hereof and prior to the Termination Date.
(vie) a Breach by Seller of the The representations and warranties of Emcore set forth in Article IV above (i) shall survive the Closing and the consummation of the transactions contemplated hereby and shall continue for a period of six (6) months after the Closing Date and (ii) shall not be affected by any examination made for or on behalf of MODE, the MODE Stockholders, or their respective officers, directors, stockholders, employees or agents, or the knowledge of any of MODE, the MODE Stockholders, or their respective officers, directors, stockholders, employees or agents.
(f) Notwithstanding anything in this Agreement to the contrary, the Principal MODE Stockholders shall not be liable under this Article VII unless and until the aggregate Damages (without giving effect to any materiality or material adverse effect qualifications or materiality exceptions contained in SECTIONS 4.1(cany provision of this Agreement) to the Indemnified Persons incurred or suffered by them resulting from, relating to or constituting any misrepresentation, breach of warranty or failure to perform any covenant or agreement of MODE or the Principal MODE Stockholder contained in this Agreement or in the certificate delivered pursuant to Section 6.1(e) exceed $100,000 (at which point the Principal MODE Stockholders shall become liable for the aggregate Damages, and not just amounts in excess of $100,000). Except with respect to claims based on willful or intentional fraud, 4.10 OR 4the obligations (in a claim for indemnification or otherwise) of the Principal MODE Stockholders to Emcore, the Surviving Corporation and the other Indemnified Persons for all Damages resulting from, relating to or constituting any misrepresentation, breach of warranty or failure to perform any covenant or agreement of MODE or the Principal MODE Stockholders shall be limited solely to the Escrow Shares.
(g) Notwithstanding anything in this Agreement to the contrary, Emcore shall not be liable under this Article VII unless and until the aggregate Damages (without giving effect to any materiality or material adverse effect qualifications or materiality exceptions contained in any provision of this Agreement) to the Indemnified Persons exceed $100,000 (at which point Emcore shall become liable for the aggregate Damages, and not just amounts in excess of $100,000). Except with respect to claims based on willful or intentional fraud, the obligations (in a claim for indemnification or otherwise) of Emcore to the MODE Stockholders and the other Indemnified Persons for all Damages resulting from, relating to or constituting any misrepresentation, breach of warranty or failure to perform any covenant or agreement of Emcore or the Acquisition Subsidiary shall be limited to $1,500,000, in the aggregate.
(h) The indemnification provisions of this Article VII shall be the sole and exclusive remedy of the Parties for breaches of the representations, warranties, covenants and agreements contained in this Agreement or relating to the transactions contemplated hereby, and each Party hereby waives any other statutory, equitable or common law remedy any Party would otherwise have for breach of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Emcore Corp)
Survival and Limitations. (a) All The representations and warranties of the Parties contained in this Agreement and or in any other certificate or document delivered pursuant to this Ancillary Agreement will survive for a period of 54 months following the Closing until the later of the (A) first anniversary of the Closing Date and (B) August 31, 1998 (the "Sunset Period"“Expiration Date”); providedprovided that, however, that (i) the Expiration Date for any Claims relating to a breach of or inaccuracy in the representations and warranties set forth in Section 4.2 (iTitle to Shares), the first sentence of Section 5.1 (Existence and Good Standing) SECTIONS 4.1(cand Section 5.3 (Capitalization of the Company) shall survive indefinitely (such representations and warranties being referred to herein collectively as the “Fundamental Representations”) will be the ten-year anniversary of the Closing Date, and (ii) SECTIONS 4.10 AND 4.12 shall survive until expiration of all applicable statutes of limitations (including amendments extending said statutes). Notwithstanding the foregoing, a representation and warranty shall continue in effect in the event a claim any Claims pending on any Expiration Date for breach thereof which notice has been made prior given in accordance with Section 7.2 on or before such Expiration Date may continue to the expiration of the applicable survival period be asserted and shall survive indemnified against until such claim is finally resolved. The right to indemnification, reimbursement, or other remedy based on such representations and warranties will not be affected by any investigation conducted by Buyer (unless Buyer breaches, in any material respect, the terms set forth in SECTION 6.1(b)). Unless a specified period is set forth in this Agreement (in which event such specified period will control), all agreements and covenants contained in this Agreement will survive the Closing and remain in effect indefinitely.
(b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this SECTION 13.1), Seller shall not be liable hereunder to Buyer as a result any Breach of any representation, warranty, covenant or agreement contained in this AgreementArticle VII, unless and the Seller will not have any liability pursuant to Section 7.1(a)(i) until the aggregate amount of all such Losses incurred sustained by all Buyer the Purchaser Indemnified Parties as a result of such misrepresentations under this Agreement shall exceedexceeds USD 1,000,000, in which case, the aggregate, $250,000 (the "Basket Threshold") and once the Basket Threshold is reached, Seller shall fully indemnify all Buyer Indemnified Parties will be liable only for all any Losses in excess of such amount; provided that, the Basket Threshold. The parties agree that the maximum liability foregoing limitation will not apply to any inaccuracy or breach of Seller for any Losses of Buyer shall not exceed, in the aggregate, $2,000,000 (the "Cap")a Fundamental Representation.
(c) Notwithstanding anything to the contrary contained in this Article VII, the Seller will not have any liability pursuant to Section 7.1(a)(i) in excess of:
(i) the Purchase Price, with respect to any inaccuracy or breach of a Fundamental Representation, or
(ii) the Appraised Value of the capital stock of the Company then held by the Seller with respect to any inaccuracy or breach of any representation or warranty that is not a Fundamental Representation (such Appraised Value to be determined as of the date the underlying Liability Claim is settled or satisfied); provided that, at its option, the Seller may satisfy any indemnification obligation subject to this clause (ii) through the payment of cash, the delivery of such capital stock or any combination thereof; and, provided, further, that, if the amount of indemnifiable Loss exceeds the Appraised Value, then the Seller may satisfy the indemnification obligation subject to this clause (ii) in full by delivering such capital stock to the Purchaser (for the avoidance of doubt, in such case, the Purchaser Indemnified Party will not be entitled to any cash payment in addition to receiving the shares of such capital stock). Any capital stock transferred by the Seller pursuant to this Section 7.3(c) shall be free and clear of any and all Liens, except as created by or through either Purchaser Indemnified Party. To secure its indemnification obligations under this Article VII, the Seller shall not grant or suffer to exist any Lien upon its capital stock of the Company without the prior written consent of the Purchaser, which consent may be conditioned upon the Seller providing alternative security for its indemnification obligations in a manner satisfactory to the Purchaser (it being understood that the Purchaser will, in good faith, consider any unconditional guaranty of payment from the Seller as a potential alternative means of security).
(d) Subject to Section 7.2 above, the Cap Parties agree to reasonably cooperate with each other with respect to resolving any Liability Claim, and Basket Threshold shall in no event apply to take their respective commercially reasonable efforts to mitigate the Losses associated with any Losses incurred Liability Claim. The amount of any Loss for which a Liability Claim is made under this Article VII will be reduced by a Buyer the net amount actually recovered by the Indemnified Party which relatefrom any third party or through insurance proceeds with respect to the event or circumstances giving rise to such Loss; provided that, directly no Indemnified Party shall be required to seek a third party recovery or indirectlyto make an insurance claim prior to asserting a Liability Claim hereunder, to and the net amount of any third party recovery or insurance proceeds will be offset against the amount of any Liability Claim only upon (i) an indemnification obligation under SECTIONS 13.2(b)the satisfaction of such Liability Claim by the Indemnifying Party or (ii) through a refund to the Indemnifying Party if such third party recovery or insurance proceeds are received by the Indemnified Party after such Liability Claim has been satisfied in full.
(e) For purposes of this Article VII, 13.2(d)no Indemnified Party will be entitled to recover for any consequential, 13.2(eincidental, indirect, special or punitive damages based upon, arising out of, or otherwise in respect of any Liability Claim, except (i) OR 13.2(f)to the extent such Indemnified Party is liable to any third Person in respect thereof, (ii) any Losses relating to as otherwise provided in Section 5 of the Seller's obligations set forth in SECTION 15.1 below to pay for its own expenses in connection with the Contemplated Transactions, Stockholders Agreement or (iii) for any fraudulent acts committed by Seller, (iv) any amounts due to Buyer which are held in the Xxxxx Xxx Escrow, (v) any amounts due to Buyer pursuant to ARTICLE XII hereof and (vi) Liability Claim based upon a Breach by Seller breach of the representations and warranties contained in SECTIONS 4.1(c), 4.10 OR 4Section 8.1 below.
Appears in 1 contract
