Survival of Representations and Warranties Indemnification. (a) The representations and warranties of the parties contained in Articles 4 and 5 of this Agreement shall survive for a period of six months from the effective date hereof, 52 provided, however, that the representation in Section 5.6 hereof shall survive for a period of two years from the effective date hereof. (b) Vendell and each Vendell Subsidiary jointly and severally, in accordance with the Escrow Agreement, agree to indemnify and hold harmless Buyer, and each officer, director, employee, shareholder or other agent thereof and their respective estates (each being a "Buyer Indemnified Party"), from and against any and all claims, losses, damages, liabilities, and expenses (including without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Buyer Indemnified Party in connection with each and all of the following: (i) any misrepresentation or breach of any warranty made by Seller in this Agreement; (ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement; (iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transaction contemplated by this Agreement; (iv) any misrepresentation or breach of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and (v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liability. (c) CCS shall, indemnify, defend, and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), from and against any and all claims, losses, damages, liabilities, and expenses (including, without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Seller Indemnified Party in connection with each and all of the following: (i) any misrepresentation or breach of any warranty made by Seller in this Agreement; (ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement; (iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement; and (iv) any attempt (whether or not successful) by any person to cause or require such Seller Indemnified Party to pay or discharge any Assumed Liabilities. (d) Subject to the provisions of the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party of any claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without the prior written consent of the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then: (i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlement. (e) Until all Buyer Indemnified Parties have incurred losses aggregating $100,000, no amounts shall be paid to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000. (f) Buyer shall assert all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Childrens Comprehensive Services Inc)
Survival of Representations and Warranties Indemnification. l0.1 Survival of Representations, Warranties and Agreements.
(a) The representations and representations, warranties of the parties or agreements contained in Articles 4 and 5 of this Agreement herein shall survive for a period of six months from beyond the effective date hereof, 52 provided, however, that the representation in Section 5.6 hereof shall survive Effective Time for a period of two years from after the effective date hereofEffective Time (the "Termination Date").
(b) Vendell The Surviving Corporation, Urohealth, Urohealth Sub and each Vendell Subsidiary jointly of their officers, directors, employees, agents, representatives and severallyaffiliates (collectively, the "Indemnitees") and individually each an "Indemnitee") will be entitled to be indemnified and held harmless against and in accordance with the Escrow Agreementrespect of any claims, agree to indemnify and hold harmless Buyer, and each officer, director, employee, shareholder or other agent thereof and their respective estates (each being a "Buyer Indemnified Party"), from and against any and all claimsdamages, losses, damagescosts, liabilitiesexpenses, liabilities (absolute, accrued, contingent or otherwise), and reasonable legal fees and expenses (including without limitationcollectively, settlement costs and "Losses") incurred or suffered by any legal Indemnitee, directly or other fees indirectly caused by or expenses for investigating arising out of or defending related to any actions untruth, inaccuracy, error in, or threatened actionsbreach of, any representation or warranty of X-Cardia contained in this Agreement, when made or deemed to be made
(c) reasonably incurred by such Buyer Indemnified Party in connection with each and all Each of the following:
X-Cardia Shareholders, acting through the Representative, (i) as defined below), will be entitled to be indemnified and held harmless against and in respect of any misrepresentation Losses incurred or suffered by the X-Cardia Shareholders, directly or indirectly caused by or arising out of or related to any untruth, inaccuracy, error in, or breach of any representation or warranty made by Seller of Urohealth contained in this Agreement;
(ii) the nonfulfillment , when made or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant deemed to this Agreement or in connection with the transaction contemplated by this Agreement;
(iv) any misrepresentation or breach of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and
(v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liability.
(c) CCS shall, indemnify, defend, and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), from and against any and all claims, losses, damages, liabilities, and expenses (including, without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Seller Indemnified Party in connection with each and all of the following:
(i) any misrepresentation or breach of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement; and
(iv) any attempt (whether or not successful) by any person to cause or require such Seller Indemnified Party to pay or discharge any Assumed Liabilitiesbe made.
(d) Subject In no event shall the indemnification obligations Pursuant to the provisions of the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party of any claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without the prior written consent of the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
10.1 (ib) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlement.
(e) Until all Buyer Indemnified Parties have incurred losses aggregating $100,000, no amounts shall be paid to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses above exceed $100,000 in the aggregateaggregate the consideration received by the X-Cardia Shareholders pursuant to Article III hereof, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000provided, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000.
(f) Buyer shall assert further, that all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date which is six months from the Closing Date. Seller shall assert all 10.1(b) (except claims for fraud) shall be made exclusively against amounts of Merger Consideration not yet received by the X-Cardia Shareholders. Such obligations shall be several, and not joint, in proportion with each X-Cardia Shareholder's ownership of X-Cardia Shares at the Effective Time. In satisfaction of the indemnification obligations of any X-Cardia Shareholder pursuant to Section 7.17(c10.1(b), if at all, on Urohealth shall offset amounts otherwise due such X-Cardia Shareholder as Earn-Out Consideration or before the date which is six months from the Closing Date, except for a claim based on the breach Milestone Payments against such indemnification obligations. Any amounts of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Date.Earn-Out Consideration or
Appears in 1 contract
Survival of Representations and Warranties Indemnification. (a) The representations and warranties of the parties contained in Articles 4 and 5 of this Agreement shall will survive for a period the Closing and will expire by their own terms on the one (1) year anniversary of six months from the effective date hereof, 52 provided, however, that the representation in Section 5.6 hereof shall survive for a period of two years from the effective date hereofClosing Date.
(b) Vendell Subject to the provisions of this Section 13, Seller and Operator, on the one hand, and Buyer, on the other hand, each Vendell Subsidiary shall (jointly and severally, in accordance with the Escrow Agreementcase of Seller and operator) indemnify, agree to indemnify defend, and hold harmless Buyerthe other party and its affiliates, members, directors, officers and each officer, director, employee, shareholder or other agent thereof and their respective estates (each being a "Buyer Indemnified Party")agents for, from and against any and all any damages, suits, claims, lossesproceedings, damagesfines, liabilitiesjudgments, costs, and expenses (including without limitationreasonable attorneys’ fees) (collectively, settlement costs and any legal “Losses”) asserted against or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred suffered by such Buyer Indemnified Party in connection with each and all other party as a result of the following:
(i) or arising from any misrepresentation breach by such party of its representations, warranties, or breach of any warranty made by Seller covenants in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transaction contemplated by this Agreement;
(iv) any misrepresentation or breach of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and
(v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liability.
(c) CCS shallAny party entitled to receive indemnification under this Agreement (an “Indemnitee”) will use commercially reasonable efforts to mitigate any indemnifiable Losses, indemnify, defendincluding using commercially reasonable efforts to recover otherwise indemnifiable Losses from insurers of Indemnitee under applicable insurance policies so as to reduce the amount of any indemnifiable Loss hereunder, and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), will not take any action specifically excluding from and against any and all claims, losses, damages, liabilities, and expenses (including, without limitation, settlement costs and of its insurance policies any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred otherwise indemnifiable Losses if losses of such type are otherwise covered by such Seller Indemnified Party in connection with each and all policies. The amount of the following:
any indemnifiable Loss will be reduced: (i) to the extent that Indemnitee receives any misrepresentation insurance or breach of any warranty made by Seller in this Agreement;
other proceeds with respect to an otherwise indemnifiable Loss, and (ii) take into account any net tax benefit recognized by Indemnitee arising from the nonfulfillment or breach recognition of the indemnifiable Loss and any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant payment actually received with respect to this Agreement or in connection with the transactions contemplated by this Agreement; and
(iv) any attempt (whether or not successful) by any person to cause or require such Seller Indemnified Party to pay or discharge any Assumed Liabilitiesan otherwise indemnifiable Loss.
(d) Subject In the event that Indemnitee becomes aware of a claim for which it may be entitled to the provisions of the Escrow Agreementindemnification hereunder, if in effect, an indemnified such party shall will promptly notify the indemnifying other party (an “Indemnitor”), describing the claim in reasonable detail and indicating the estimated amount, to the extent practicable, of any claimthe indemnifiable Loss that Indemnitee claims it has sustained or may sustain. Indemnitor, demandat its sole cost and expense, action, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at right, upon written notice to the Indemnitee delivered within fifteen (15) business days following its expense receipt of such notice from the Indemnitee, to assume retain counsel and conduct the defense thereof using of the claim while reserving its right to contest the issue of whether it is liable to Indemnitee for any indemnification hereunder. If Indemnitor elects to conduct the defense of the claim, Indemnitee will cooperate fully with respect thereto, and the costs of any separate counsel reasonably acceptable retained by Indemnitee will be borne solely by Indemnitee. In the event Indemnitor fails to timely respond to the indemnified party. The indemnified party shall have written notice of a claim, or refuses to timely retain counsel and conduct the right defense of the claim, Indemnitee may retain counsel and conduct the defense of the claim, and Indemnitor will be liable for all reasonable defense costs (including reasonable attorneys’ fees) to participate, at its own expense, the extent Indemnitor is otherwise obligated hereunder to indemnify Indemnitee with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim for which Indemnitor accepts full responsibility hereunder, Indemnitor will have full authority to make all decisions and determine all actions to be taken with respect to the defense and settlement of the claim, demandincluding the right to pay, actioncompromise, settle, or proceedingotherwise dispose of the claim at Indemnitor’s expense; provided, Buyer and Seller shall cooperate with each other and provide each other with access however, that any such settlement will be subject to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without the prior written consent of Indemnitee, which will not be unreasonably withheld or delayed, if the indemnified partysettlement involves relief other than or in addition to the payment of money by Indemnitor. If A failure to give timely notice hereunder will affect the rights and obligations of a firm written offer is made party hereunder only to settle any such third party claimthe extent that, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
(i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense as a result of such third failure, the party claimentitled to receive the notice was actually prejudiced as a result of such failure; provided, demandhowever, action, or proceeding; and (ii) that in no event will a claim for indemnification be valid if made after the maximum liability expiration of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlementapplicable survival period set forth herein.
(e) Until all Buyer Indemnified Parties have incurred losses aggregating $100,000Notwithstanding any other provision of this Section 13, no amounts shall claim for indemnification by either party hereunder may be paid to made unless the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed aggregate amount of all Indemnifiable Losses exceeds $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,00025,000.
(f) Buyer For the avoidance of doubt, (i) the obligations and covenants contained in this Section 13 shall assert all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date which is six months from survive the Closing Date. Seller for the applicable survival period set forth herein, (ii) the remedies and obligations under this Section 13 shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from apply after the Closing Dateonly, except (iii) prior to the Closing, or in the event that this Agreement is terminated, the parties’ remedies will be determined by other provisions contained in this Agreement, and (iv) after the Closing, the sole and exclusive remedy for a claim based on the any breach or alleged breach of any representation, warranty, or covenant under this Agreement or any other instrument or agreement delivered in connection with this transaction (including the representations of OTA) will be to seek indemnification in accordance with, and subject to the limitations of, this Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Date13.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Griffin-American Healthcare REIT IV, Inc.)
Survival of Representations and Warranties Indemnification. (a) The representations and warranties of the parties herein contained shall survive the Closing, provided that any claims for indemnification in accordance with this Article V, Section 5.2 with respect to any representation or warranty must be made (and will be null and void unless made) on or before the date twenty four months following the Closing Date (except in the case of representations contained in Articles 4 Sections 4.2(f) (Titles and 5 Liens), 4.2(k) (Taxes) and 4.2(n) (Environmental Compliance) of this Agreement shall survive for a period Agreement, which must be made prior to the expiration of six months from the effective date hereof, 52 provided, however, that the representation in Section 5.6 hereof shall survive for a period applicable statute of two years from the effective date hereoflimitations).
(b) Vendell and each Vendell Subsidiary jointly and severally, in accordance with the Escrow Agreement, agree Seller hereby agrees to indemnify and hold harmless BuyerPurchaser, and each officerits officers, directordirectors, employeestockholders, shareholder or affiliates, employees, representatives and other agent thereof and their respective estates (each being a "Buyer Indemnified Party"), agents harmless from and against any and all claims, liabilities, losses, damagesdamages or injuries, liabilities, and expenses (including without limitation, settlement together with costs and any expenses, including reasonable legal fees, that in the aggregate exceed $175,000 (the “Indemnification Threshold”) and in the aggregate, excluding reasonable legal fees, are less than $18,000,000 (the “Indemnification Cap”) and arising out of or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Buyer Indemnified Party in connection with each and all of the following:
resulting from (i) any material breach, misrepresentation or breach material omission of any warranty the representations and warranties made by Seller in this Agreement;
Agreement or in any Schedule hereto or other documents delivered in connection herewith, (ii) the nonfulfillment or any breach in any material respect by Seller, unless waived in writing by Purchaser, of any covenant, agreement, covenant or obligation of Seller agreement contained in or contemplated by arising out of this Agreement;
, or any other agreement delivered in connection herewith on the Closing Date, (iii) any misrepresentation and all liabilities of Seller, other than the Assumed Liabilities, and (iv) any failure by Seller to comply with any provision of the bulk sales or breach similar laws of any warranty contained in any statement, certificate, or other document executed by Seller pursuant jurisdiction which are applicable to this Agreement or the transactions contemplated hereby. Notwithstanding the foregoing, the Indemnification Threshold and the Indemnification Cap shall not apply to claims, liabilities, losses, damages or injuries, together with costs and expenses, including reasonable legal fees, arising out of any material breach by Seller in connection with the transaction contemplated by this Agreement;
representations contained in Sections 4.2(f) (ivTitles and Liens), 4.2(k) any misrepresentation or breach of the warranties of Seller made in Section 4.14 hereof, with such representations (Taxes) and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and
4.2(n) (v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed LiabilityEnvironmental Compliance).
(c) CCS shall, indemnify, defend, Purchaser hereby agrees to indemnify and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), harmless from and against any and all claims, liabilities, losses, damagesdamages or injuries, liabilities, and expenses (including, without limitation, settlement together with costs and any expenses, including reasonable legal fees, arising out of or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Seller Indemnified Party in connection with each and all of the following:
resulting from (i) any breach, misrepresentation or breach of any warranty material omission in the representations and warranties made by Seller Purchaser in this Agreement;
, (ii) the nonfulfillment or any breach in any material respect by Purchaser, unless waived in writing by Seller, of any covenant, agreement, covenant or obligation agreement of Seller Purchaser contained in or contemplated by arising out of this Agreement;
, or (iii) any misrepresentation or breach of any warranty contained in any statementthe Businesses as conducted by Purchaser, certificate, or other document executed by Seller pursuant to this Agreement or in connection with after the transactions contemplated by this Agreement; and
(iv) any attempt (whether or not successful) by any person to cause or require such Seller Indemnified Party to pay or discharge any Assumed LiabilitiesClosing Date.
(d) Subject Any party claiming a right to indemnification hereunder (the provisions of “Indemnified Party”) shall give the Escrow Agreement, if in effect, an indemnified other party shall promptly notify from whom indemnification is sought (the indemnifying party “Indemnifying Party”) prompt written notice of any claim, demand, action, suit, proceeding or proceeding discovery of fact upon which the Indemnified Party intends to base a claim for which indemnification will be sought under this Section 7.17 of this Agreement5.2, andprovided, if however, that no failure to give such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable notice shall excuse any Indemnifying Party from any obligation hereunder except to the indemnified partyextent the Indemnifying Party is materially prejudiced by such failure. The indemnified party Indemnified Party shall have the right to participate, at its own expense, full responsibility and authority with respect to the disposition of any action, suit or proceeding brought against it; provided, however, that it will not settle any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, suit or proceeding shall be settled without the prior written consent of the indemnified partyIndemnifying Party, which will not be unreasonably withheld or delayed. If a firm written offer In the event any action, suit or proceeding is made brought against the Indemnified Party with respect to settle which the Indemnifying Party may have liability under the indemnity agreements contained in Sections 5.2(b) and 5.2(c) hereof, however, the Indemnifying Party shall have the right, without prejudice to the Indemnified Party’s rights under this Agreement, at the Indemnifying Party’s sole expense, to be represented by counsel of its own choosing and with whom counsel for the Indemnified Party shall confer in connection with the defense of any such third party claim, demand, action, suit, or proceeding. The Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants, all books and records of the Indemnified Party relating to such action, suit or proceeding and the indemnifying party proposes parties agree to accept render to each other such settlement, assistance as may reasonably be requested in order to insure the proper and the indemnified party refuses to consent to such settlement, then:
(i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further adequate defense of any such third party claim, demand, action, suit or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlement.
(e) Until all Buyer Indemnified Parties have incurred losses aggregating $100,000, no amounts All indemnification obligations of Seller and Purchaser in Sections 5.2(b) and 5.2(c) above shall be paid to expire twenty-four months after the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000.
Closing Date except (fi) Buyer shall assert all any claims for indemnification pursuant which have commenced in the applicable forum for resolution prior to Section 7.17(bsuch date which shall expire upon a final non-appealable decision of, or the withdrawal of, such claim and (ii) for indemnification obligations arising out of any material breach by Seller in the representations contained in Sections 4.2(f) (Titles and Liens), if 4.2(k) (Taxes) and 4.2(n) (Environmental Compliance) which shall expire at all, on or before the date which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach expiration of the representations applicable statute of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Datelimitations.
Appears in 1 contract
Survival of Representations and Warranties Indemnification. (a) The Notwithstanding any right of any party to the Agreement to fully investigate the affairs of any other party to the Agreement and notwithstanding any knowledge of facts determined or determinable by any party pursuant to such investigation or right of investigation, each party to the Agreement has the right to rely fully upon the representations and warranties of any other party to the parties Agreement contained in Articles 4 and 5 of this Agreement shall survive for a period of six months from the effective date hereof, 52 provided, however, that the representation in Section 5.6 hereof shall survive for a period of two years from the effective date hereof.
(b) Vendell and each Vendell Subsidiary jointly and severally, in accordance with the Escrow Agreement, agree to indemnify and hold harmless Buyer, and each officer, director, employee, shareholder or other agent thereof and their respective estates (each being a "Buyer Indemnified Party"), from and against any and all claims, losses, damages, liabilities, and expenses (including without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Buyer Indemnified Party in connection with each and all of the following:
(i) any misrepresentation or breach of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, Schedule or Exhibit or any closing certificate furnished or to be furnished by any such other document executed by Seller party pursuant to this Agreement or in connection with the transaction contemplated by this Agreement;Merger.
(ivb) any misrepresentation or breach of the warranties of Seller made in Section 4.14 hereof, with such All representations and warranties being construed as if they were not qualified of the Company, the Shareholders and the Acquiror contained herein and in the Schedules and the Exhibits hereto and in any closing certificates delivered pursuant hereto shall survive the execution and delivery of this Agreement and the Closing; PROVIDED, HOWEVER, that, notwithstanding the foregoing, the representations and warranties set forth in Articles IV, V and VI of this Agreement, and in the Schedules and Exhibits hereto and in any closing certificate delivered in connection herewith, relating to matters that would be expected to be resolved by an audit conducted in accordance with generally accepted auditing standards shall survive the knowledge execution and delivery of Seller, this Agreement and the Escrow Agreement and the Closing until the date of issuance of the report of Acquiror's independent public accountants with respect to the extent such misrepresentation or breach is based upon alleged first audit of financial statements containing combined operations of Acquiror and the Company (the "AUDIT DATE"), unless a notice of claim of a breach of such representation or noncompliance with healthcare regulatory Laws warranty shall have been given prior to such date; and are alleged provided further that all other representations and warranties set forth in Articles IV, V and VI of this Agreement and in the Schedules and Exhibits hereto and in any closing certificate delivered in connection herewith shall survive the execution and delivery of this Agreement and the Escrow Agreement and the Closing until the first anniversary of the Effective Time, unless a third notice of claim of a breach of such representation or warranty shall have been given prior to such date. Nothing in this Agreement or the Escrow Agreement shall be deemed to limit any right or remedy of any party claim, whether brought by a Governmental at law or Regulatory Authority in equity or any other Person; and
(v) any attempt (whether for criminal activity or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liabilityfraud.
(c) CCS shall, indemnify, defend, and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), from and against any and all claims, losses, damages, liabilities, and expenses (including, without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Seller Indemnified Party With respect to claims arising in connection with each and all actions or omissions of the following:
(i) Company or any misrepresentation of the officers, directors, agents, employees or breach shareholders of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment Company which occurred prior to the Effective Time or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or claims arising in connection with the negotiation and consummation of the transactions contemplated by this Agreement; and
(iv) , in each case only to the extent that such claim results in a breach of representation or warranty contained herein, each of the Shareholders hereby agrees that he will not make any attempt claim for indemnification against the Company by reason of the fact that he was a director, officer, employee, or agent of any the Company or was serving at the request of the Company as a partner, trustee, director, officer, employee, or agent of another entity (whether such claim is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or not successfulotherwise and whether such claim is pursuant to any statute, charter document, bylaw, agreement, or otherwise) with respect to any action, suit, proceeding, complaint, claim, or demand brought by any person Acquiror or Acquiror Sub against the Shareholder (whether such action, suit, proceeding, complaint, claim, or demand is pursuant to cause this Agreement, applicable law, or require such Seller Indemnified Party to pay or discharge any Assumed Liabilitiesotherwise).
(d) Subject The parties to this Agreement agree to indemnify one another and to grant each other the provisions of respective rights with regard thereto as are set forth in the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party of any claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 of Agreement set forth as EXHIBIT 2.02 to this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without the prior written consent of the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
(i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlement.
(e) Until all Buyer Indemnified Parties have incurred losses aggregating $100,000, no amounts shall be paid to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000.
(f) Buyer shall assert all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Date.
Appears in 1 contract
Sources: Merger Agreement (Vincam Group Inc)
Survival of Representations and Warranties Indemnification. (a) 9.1 The representations representations, warranties, covenants and warranties of agreements contained herein to be performed or complied with after the parties contained in Articles 4 and 5 of this Agreement Closing shall survive for without limitation as to time, unless the covenant or agreement specifies a period of six months from the effective date hereofterm, 52 provided, however, that the representation in Section 5.6 hereof which case such covenant or agreement shall survive for a period until the expiration of two years from the effective date hereofsuch specified term.
(b) Vendell 9.2 From and after the Closing, each Vendell Subsidiary jointly and severallyparty shall indemnify, in accordance with the Escrow Agreement, agree to indemnify defend and hold harmless Buyer, and each officer, director, employee, shareholder or the other agent thereof and their respective estates (each the party seeking indemnification being a referred to as the "Buyer Indemnified Party")) from, from against and against in respect of any and all claims, losses, liabilities and damages, liabilities, and expenses (including without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Buyer Indemnified Party in connection with each and all of the following:
(i) any misrepresentation or breach of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transaction contemplated by this Agreement;
(iv) any misrepresentation or breach of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and
(v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liability.
(c) CCS shall, indemnify, defend, and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), from and against any and all claims, losses, damages, liabilities, and expenses (including, without limitation, settlement amounts paid in settlement, reasonable costs of investigation and any legal reasonable fees and disbursements of counsel (whether at the pre-trial, trial or other fees or expenses for investigating or defending any actions or threatened actionsappellate levels) reasonably incurred by such Seller which the Indemnified Party in connection with each and all shall suffer, sustain or become subject to by virtue of or which arises our of, or results from the following:
(i) any misrepresentation or breach of any warranty made by Seller representation, warranty, covenant or agreement, set forth in this Agreement;
(ii) the nonfulfillment Agreement or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statementinstrument or certificate delivered pursuant hereto. To the extent incurred prior to a settlement or conclusion of any litigation arising hereunder, certificate, or other document executed such reasonable costs and fees shall be paid by Seller pursuant to this Agreement or in connection with the transactions contemplated Indemnifying Party as incurred by this Agreement; andthe Indemnified Party.
(iv) any attempt (whether or not successful) by any person to cause or require such Seller 9.3 The Indemnified Party to pay or discharge any Assumed Liabilities.
(d) Subject to the provisions of the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party against whom indemnification is sought (the "Indemnifying Party") in writing of any claim for indemnification, specifying in detail the basis of such claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, the facts pertaining thereto and, if such claimknown, demand, actionthe amount, or proceeding is a third party claiman estimate of the amount, demand, action, or proceeding, of the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable liability arising therefrom. The Indemnified Party shall provide to the indemnified party. The indemnified party Indemnifying Party as promptly as practicable thereafter all information and documentation necessary to support and verify the claim asserted and the Indemnifying Party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with be given reasonable access to relevant all books and records in their possession. No such third party claim, demand, action, the possession or proceeding shall be settled without the prior written consent control of the indemnified party. If a firm written offer is made Indemnified Party or any of its affiliates which the Indemnifying Party reasonably determines to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent be related to such settlement, then:
(i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlement.
(e) Until all Buyer Indemnified Parties have incurred losses aggregating $100,000, no amounts shall be paid to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000.
(f) Buyer shall assert all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Date.
Appears in 1 contract
Survival of Representations and Warranties Indemnification. (a) The representations and warranties of the parties Seller and Purchaser contained in Articles 4 and 5 of this Agreement Agreement, or in any certificate or other instrument delivered in connection herewith, shall survive for the Closing and shall expire upon the first to occur of (x) six (6) months after the Closing Date, or (y) the date the Note is paid in full, provided that if any party hereto, before the expiration date of a period representation or warranty given by another party hereto, delivers to such other party in good faith a written notice alleging a bona fide breach of six months from such representation or warranty with sufficient detail to identify the effective date hereofclaim and the amount of the indemnity being sought, 52 provided, however, that the applicable representation in Section 5.6 hereof or warranty shall survive until, but only for a period purposes of, the resolution of two years from the effective matter covered by such notice. Any amounts under the Note not subject to bona fide set-off claims as herein provided shall be paid in full on the scheduled maturity date hereofof the Note. If the Purchaser shall fail to timely pay all amounts due as described in the preceding sentence, all rights of set-off against the Note, including any pending claims, shall be extinguished automatically, and the Purchaser shall have no further rights under Article 7.
(b) Vendell From and each Vendell Subsidiary jointly after the date hereof, and severallyat all times subject to (e) below, in accordance with the Escrow AgreementSeller shall defend, agree to indemnify and hold harmless Buyer, and each officer, director, employee, shareholder or other agent thereof and their respective estates Purchaser (each being a "Buyer “Purchaser Indemnified Party")”) from, from against and against in respect of any and all claims, losses, damagescosts, expenses, obligations, liabilities, and expenses (including without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Buyer Indemnified Party in connection with each and all of the following:
(i) any misrepresentation or breach of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transaction contemplated by this Agreement;
(iv) any misrepresentation or breach of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and
(v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liability.
(c) CCS shall, indemnify, defend, and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), from and against any and all claims, losses, damages, liabilities, recoveries and expenses deficiencies (including, without limitation, settlement costs interest, penalties and any legal or other fees or expenses for investigating or defending any actions or threatened actionsreasonable attorneys’ fees) reasonably incurred by (“Losses”), that such Seller Purchaser Indemnified Party in connection with each and all may incur, sustain or suffer resulting from or arising out of the following:
(i) any misrepresentation or breach of or any inaccuracy in any representation or warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) , or any misrepresentation or breach of any warranty contained in any statement, certificate, other certificate or other document executed delivered by Seller pursuant to this Agreement, or in any Schedule or Exhibit hereto or thereto, and/or (ii) any breach or failure to perform any covenant or agreement of Seller contained in this Agreement, and/or (iii) the reasonable legal costs and expenses incurred by Purchaser attributable to claims brought against the Purchaser by the following parties: W▇▇▇▇▇▇’▇ Inc., Clothing Care, Inc., and W▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., seeking to: (1) enjoin the purchaser from operating business or dispose of its assets; (2) attach or encumber any Purchased Assets or Conveyed Assets (as that term is defined in the Assumption Agreement) or any proceeds generated by the Purchaser in operating its businesses in Virginia, or (3) avoid the transactions effected by this Agreement or in connection with the transactions contemplated by this Assignment Agreement; andprovided that, subject to Section 7.1(e) below, the sole recourse of each Purchaser Indemnified Party with respect to claims under (i), (ii) and (iii) above shall be against the Note (as described in Section 7.1(d) below).
(ivc) From and after the date hereof, Purchaser shall defend, indemnify and hold harmless Seller (each a “Seller Indemnified Party”) from, against and in respect of any attempt (whether or not successful) by any person to cause or require and all Losses that such Seller Indemnified Party may incur, sustain or suffer resulting from or arising out of (i) any breach of or any inaccuracy in any representation or warranty of Purchaser contained in this Agreement, or any other certificate or other document delivered by Purchaser pursuant to pay this Agreement, or discharge in any Assumed LiabilitiesSchedule or Exhibit hereto or thereto, and/or (ii) any breach or failure to perform any covenant or agreement of Purchaser contained in this Agreement, provided that the liability of the Purchaser with respect to such indemnity shall not exceed $1,000,000 in the aggregate, if the Transactions contemplated hereby have closed, and any claims asserted by the Purchaser under Section 7.1(a) are bona fide and made in good faith.
(d) Subject In the event that any Purchaser Indemnified Party shall have incurred, sustained or suffered any Loss with respect to the provisions of the Escrow Agreement, if in effect, an which it is entitled to be indemnified party shall promptly notify the indemnifying party of any claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding7.1(b) above, the indemnifying party will have sole recourse of such Purchaser Indemnified Party (subject to Section 7.1(e) below) shall be for Purchaser to set-off the right at its expense full amount of such Loss against the unpaid principal amount the Note, in which event the Note shall be deemed to assume the defense thereof using counsel reasonably acceptable to the indemnified partybe automatically amended accordingly. The indemnified party In addition, Purchaser shall have the right to participateset-off against the unpaid principal amount of the Note the full amount of the Losses arising as a result of breaches by the Companies under Section 3(c) and Section 9(f)(iv) of the Assignment Agreement, at its own expensein which event the unpaid principal Note shall be deemed to be automatically amended accordingly. For the avoidance of doubt, no offsets against the Note contemplated by the previous sentence can be effected for claims asserted after the scheduled maturity date of the Note. Upon transfer by the Companies or their designees of the z▇▇▇▇.▇▇▇ web-site and 800 number in compliance with Section 9(f)(iv) of the Assignment Agreement, the Purchaser shall have no right of set-off against the Note with respect to any such third party claim, demand, action, or proceedingSection 9(f)(iv). In connection addition, subject to Section 7.1(e) below, the sole recourse of each Purchaser Indemnified Party with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access respect to relevant books and records in their possession. No such third party claim, demand, action, or proceeding claims under this Section 7.1(d) shall be settled without against the prior written consent of the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
(i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlementNote.
(e) Until all Buyer Indemnified Parties have incurred losses aggregating $100,000Except as hereinafter provided, no amounts Purchaser’s sole remedy with respect to this Article 7 shall be to offset any Losses against the then outstanding principal balance of the Note (as the same may be reduced under Section 1.7 hereof), and there shall be no other recourse against Seller. If, however, the Seller elects to collect upon the Note on the scheduled maturity date, and Parent has paid the Note without effecting one or more of the set-offs that it was entitled to make under this Article 7, notwithstanding anything contained herein to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregatecontrary, the Buyer Indemnified Parties Seller shall be entitled liable to payment from make indemnity payments to Purchaser under this Article 7 up to an aggregate maximum amount equal to the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized outstanding principal amount paid in cash by the Purchaser to otherwise seek monetary recourse from Vendell or Seller on account of the Vendell SubsidiariesNote. The aggregate monetary Damages of Vendell limitation on the Seller’s liability under this Section 7.1 will terminate automatically if the Seller has asserted claims under Section 7.1(c) that are not bona fide and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000made in good faith.
(f) Buyer All disputes arising under Section 7.1 of this Agreement (including the scope of this agreement to arbitrate) shall assert all claims for indemnification pursuant be resolved by binding arbitration which shall be administered by AAA in accordance with AAA’s Commercial Arbitration Rules. The arbitration shall be conducted and the award shall be rendered in New York, New York or such other place as the parties to Section 7.17(b), if at all, on the arbitration agree before a single arbitrator that is mutually designated. Each arbitrator shall be a retired judge or before a practicing attorney with no less than fifteen (15) years of experience in arbitration and in commercial law. The arbitrator shall be required to follow the date which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach law of the representations Commonwealth of Massachusetts and the provisions of this Agreement. For purposes of this Section 5.6 hereof7.1, which claim Seller and Parent shall be asserted on considered the same party to a dispute. The arbitration shall be commenced not later than forty-five (45) days after the scheduled maturity date of the Note, and must be completed within forty-five (45) days of the arbitration’s commencement. The failure to timely commence and prosecute such arbitration in accordance with this provision shall serve as a bar to any set-off or before the date which is two years from the Closing Dateother recovery hereunder.
Appears in 1 contract
Sources: Secured Party Sale Agreement (Us Dry Cleaning Corp)
Survival of Representations and Warranties Indemnification. (a) The representations and warranties of the parties contained in Articles 4 this Agreement and 5 of any document delivered pursuant to this Agreement shall survive for a period of six months from the effective Closing until the date hereof, 52 that is one year following the Closing Date (the “Survival Period”); provided, however, that any claim with respect to fraud, criminal activity or willful misconduct on the representation part of the Sellers will survive and can be made by a BOCO Indemnified Party at any time. Notwithstanding anything to the contrary in this Section 5.6 hereof 8.1, the indemnification obligations pursuant to this ARTICLE VIII shall survive for not terminate with respect to any indemnification claim made by a period BOCO Indemnified Party prior to the expiration of two years from the effective date hereofapplicable Survival Period until such claim is resolved.
(b) Vendell From and each Vendell Subsidiary after the Closing, and subject to the terms of this ARTICLE VIII, the Sellers hereby jointly and severally, in accordance with the Escrow Agreement, severally agree to indemnify indemnify, defend and hold harmless Buyer, BOCO US and each officer, director, employee, shareholder or other agent thereof its Affiliates and their respective estates directors, managers, officers, employees, equity holders, members, partners, agents, attorneys, representatives, successors and assigns (each being a "Buyer collectively, the “BOCO Indemnified Party"), Parties”) from and against against, and pay to the applicable BOCO Indemnified Parties, the amount of any and all claims, losses, damages, liabilities, claims, obligations, deficiencies, demands, judgments, damages (including consequential damages), interest, fines, penalties, claims, suits, actions, causes of action, assessments, awards, costs and expenses (including without limitationcosts of investigation and defense and reasonable attorneys’ and other professionals’ fees), settlement costs and any legal whether or other fees or expenses for investigating or defending any actions or threatened actionsnot involving a third party claim (individually, a “Loss” and, collectively, “Losses”) reasonably actually incurred by such Buyer the BOCO Indemnified Party in connection with each Parties and all of solely to the followingextent based upon, attributable to or resulting from:
(i) any misrepresentation inaccuracy in or breach of any warranty the representations or warranties made by Seller the Sellers in Section 2.1, Section 2.2, Section 2.3 and Section 2.4 of this Agreement;
(ii) the nonfulfillment any inaccuracy in or breach of any covenant, agreement, the representations or obligation warranties made by the Sellers in Section 2.11 of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation inaccuracy in or breach of any warranty contained the representations or warranties made by the Sellers in any statementSection 2.5, certificateSection 2.6, or other document executed by Seller pursuant to this Agreement or in connection with the transaction contemplated by Section 2.7, Section 2.8, Section 2.9, Section 2.12, Section 2.13, Section 2.14 and Section 2.15 this Agreement;
(iv) any misrepresentation breach or breach non-performance of any covenant or other agreement prior to the Closing on the part of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority Sellers under this Agreement or any other Person; anddocument delivered pursuant to this Agreement;
(v) any attempt (whether breach or not successful) by non-performance of any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liability.
(c) CCS shall, indemnify, defend, and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, covenant or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), from and against any and all claims, losses, damages, liabilities, and expenses (including, without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Seller Indemnified Party in connection with each and all agreement after the Closing on the part of the following:
(i) Sellers under this Agreement or any misrepresentation or breach of any warranty made by Seller in document delivered pursuant to this Agreement;
(iivi) any misuse after the nonfulfillment or breach Closing of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, Trade Secrets or other document executed Confidential Information solely to the extent related to the Key Products by Seller pursuant to this Agreement any of the Sellers or in connection with the transactions contemplated by this Agreementany of their Affiliates; and
(ivvii) any attempt (whether of the Excluded Assets or not successful) by any person to cause or require such Seller Indemnified Party to pay or discharge any Assumed of the Retained Liabilities.
(d) Subject to the provisions of the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party of any claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without the prior written consent of the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
(i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlement.
(e) Until all Buyer Indemnified Parties have incurred losses aggregating $100,000, no amounts shall be paid to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000.
(f) Buyer shall assert all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Date.
Appears in 1 contract
Survival of Representations and Warranties Indemnification. (a) The representations and warranties of the parties contained Buyer and the Seller set forth in Articles 4 and 5 of this Agreement shall survive for a period of six eighteen (18) months from following the effective date hereof, 52 provided, however, of the Closing except that the representation and warranty in the first sentence of Section 5.6 hereof 2.4 shall survive indefinitely. All covenants and agreements of the parties hereto shall survive indefinitely, unless another time period is expressly provided for herein, in which case such covenant or agreement shall survive for a period of two years from the effective date hereofsuch time period.
(b) Vendell and each Vendell Subsidiary jointly and severally, in accordance with the Escrow Agreement, agree The Seller agrees to indemnify and hold harmless Buyerthe Buyer and its directors, officers, employees, representatives and each officer, director, employee, shareholder or other agent thereof and their respective estates agents (each being a "Buyer Indemnified PartyParties")) from, from against and against in respect of any and all claimsBuyer Losses (as defined below) suffered, losses, damages, liabilities, and expenses (including without limitation, settlement costs and sustained or incurred or required by a court of competent jurisdiction to be paid by any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred of them by such Buyer Indemnified Party in connection with each and all reason of the following:
(i) any misrepresentation representation or breach of any warranty made by the Seller in or pursuant to this Agreement;
Agreement being untrue or incorrect in any respect; (ii) any failure by the nonfulfillment Seller to observe or breach of perform its covenants and agreements set forth in this Agreement or any covenant, agreement, other agreement or obligation of Seller contained document executed by them in connection with the transactions contemplated hereby; or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transaction contemplated by this Agreement;
(iv) any misrepresentation or breach liability of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were which does not qualified by constitute an Assumed Liability; except that the knowledge of Seller, Seller shall not be responsible for indemnification hereunder to the extent such misrepresentation (and proportionate to the extent) that the Buyer Loss results from a Buyer Indemnified Party's own gross negligence or breach is based upon alleged breach willful misconduct. For purposes of this SECTION 5.1, consequential damages or noncompliance with healthcare regulatory Laws and are alleged in any damages to the extent attributable to a third party claim, whether brought failure by a Governmental or Regulatory Authority or any other Person; and
(v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liability.
(c) CCS shall, indemnify, defend, use reasonable efforts to mitigate damages shall not constitute Buyer Losses and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a shall not otherwise be recoverable. "Seller Indemnified Party"), from and against any and Buyer Losses" shall mean all claims, losses, damages, liabilities, and expenses damages (including, without limitation, amounts paid in settlement with the Seller's consent, which consent may not be unreasonably withheld), losses, liabilities, deficiencies, costs (including, without limitation, reasonable attorneys' fees), taxes, penalties, fines, interest, monetary sanctions and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Seller Indemnified Party in connection with each and all of the following:
(i) any misrepresentation or breach of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement; and
(iv) any attempt (whether or not successful) by any person to cause or require such Seller Indemnified Party to pay or discharge any Assumed Liabilities.
(d) Subject to the provisions of the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party of any claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without the prior written consent of the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
(i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlement.
(e) Until all Buyer Indemnified Parties have Party, including, without limitation, reasonable attorneys' fees and costs incurred losses aggregating $100,000, no amounts shall be paid to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell comply with injunctions and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000other court and agency orders.
(f) Buyer shall assert all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Netvoice Technologies Corp)
Survival of Representations and Warranties Indemnification. (a) The covenants and the representations and warranties contained in this Agreement, shall survive the Effective Time until the first anniversary of the parties contained in Articles 4 Effective Time. Neither the period of survival nor the liability of a party hereto with respect to such party's representations and 5 warranties shall be reduced by any investigation made at any time by or on behalf of this Agreement another party hereto. If written notice of a claim has been given prior to the expiration of the applicable representations and warranties by a party hereto to another party hereto (which notice shall indicate with reasonable specificity the amount and nature of the claim and the representation on which it is based), then the relevant representations and warranties shall survive for a period of six months from the effective date hereof, 52 provided, however, that the representation in Section 5.6 hereof shall survive for a period of two years from the effective date hereofas to such claim until such claim has been finally resolved.
(b) Vendell After the Effective Time, Parent and each Vendell Subsidiary jointly its affiliates (including, after the Effective Time, the Surviving Corporation and severallyits Subsidiaries), officers, directors, employees, agents, successors and assigns (collectively, the "Parent Indemnified Parties") shall be indemnified and held harmless by the Company solely out of the Escrow Amount for any and all liabilities (including, without limitation, Taxes due under applicable law but not yet paid by reason of a breach of Section 4.14), losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, reasonable attorneys' and consultants' fees and expenses and including any such expenses incurred in connection with investigating, defending against or settling any such claims) actually suffered or incurred by them (including, without limitation, in connection with any action brought or otherwise initiated by any of them arising out of or resulting from the breach of any representation, warranty or covenant (without giving effect to any qualification as to materiality contained therein in determining the amount of any loss) (hereinafter, a "Loss"), made by the Company in this Agreement. The aggregate amount of Losses for which the Parent Indemnified Parties may receive indemnification pursuant to this Agreement shall not exceed the amount of the Escrow Fund.
(c) Any Parent Indemnified Party seeking indemnification from another party hereto (the "Indemnifying Party") under this Section 11.02 shall give the Escrow Agent and the Shareholder Representative, notice of any matter which such Parent Indemnified Party has determined has given rise to a right of indemnification under this Agreement, prior to the expiration of the applicable representations and warranties as set forth in this Section 11.02, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the specific provisions of this Agreement in respect of which such right of indemnification is claimed or arises. All fees, expenses and Losses of the Parent Indemnified Party or the Indemnifying Party in connection with any matter for which indemnity may be sought shall be reimbursed from the Escrow Account in accordance with the Escrow Agreement, agree it being understood that the Shareholder Representative shall be the only person authorized to indemnify and hold harmless Buyer, and each officer, director, employee, shareholder or other agent thereof and their respective estates (each being a "Buyer Indemnified Party"), from and against approve the incurrence of any and all claims, losses, damages, liabilities, reimbursable fees and expenses (including without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Buyer Indemnified Party in connection with each and all on behalf of the following:
(i) any misrepresentation or breach of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transaction contemplated by this Agreement;
(iv) any misrepresentation or breach of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and
(v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liability.
(c) CCS shall, indemnify, defend, and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), from and against any and all claims, losses, damages, liabilities, and expenses (including, without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Seller Indemnified Party in connection with each and all of the following:
(i) any misrepresentation or breach of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement; and
(iv) any attempt (whether or not successful) by any person to cause or require such Seller Indemnified Party to pay or discharge any Assumed Liabilitiesshareholders.
(d) Subject If, in the event that (a) the Shareholder Representative shall not have objected to the provisions of amount claimed by the Parent Indemnified Party for indemnification from the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party of any claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate, at its own expense, Fund with respect to any such third party claim, demand, action, Loss in accordance with the procedures set forth herein and in the Escrow Agreement or proceeding. In connection with (b) the Shareholder Representative shall have delivered notice of its disagreement as to the amount of any such third party claim, demand, action, or proceeding, Buyer indemnification requested by the Parent Indemnified Party from the Escrow Fund and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without the prior written consent of the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
either (i) the indemnifying party Shareholder Representative and the Parent Indemnified Party shall be excused fromhave, subsequent to the giving of such notice, mutually agreed that the Parent Indemnified Party is entitled to indemnification from the Escrow Fund for a specified amount and shall have so jointly notified the Escrow Agent or (ii) a final judgment shall have been rendered by the court having jurisdiction over the matters relating to such claim by the Parent Indemnified Party for indemnification from the Escrow Fund, and the indemnified party Escrow Agent shall be solely responsible forhave received, all further defense in the case of such third party claimclause (i) above, demandjoint written instructions from the Shareholder Representative and the Parent Indemnified Party or, action, or proceeding; and in the case of clause (ii) the maximum liability above, a copy of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount final judgment of the proposed settlement if the amount thereafter recovered court and written instructions from the indemnified party on such third party claimParent Indemnified Party, demand, action, or proceeding is greater than the Escrow Agent shall deliver to the Parent Indemnified Party funds from the Escrow Fund in respect of any amount of determined to be owed to the proposed settlementParent Indemnified Party under this Section 11.02 in accordance with the Escrow Agreement.
(e) Until In all Buyer matters relating to this Section 11.02, the Shareholder Representative shall be the only party entitled to assert the rights of the Individual Shareholders, and the Shareholder Representative shall perform all of the obligations of the Individual Shareholders hereunder. Parent shall be entitled to rely on all statements, representations and decisions of the Shareholder Representative.
(f) Notwithstanding anything else in this Agreement, the Indemnified Parties have incurred losses aggregating shall not be entitled to recover under this Section 11.02 with respect to any breach of representations, warranties or covenants, unless the aggregate amount of Losses arising out of all such breaches of representations, warranties and covenants exceeds $100,000500,000, no amounts shall be paid to at which time the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for recover all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages Losses in excess of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000.
(fg) Buyer The indemnification provided by this Section 11.02 shall assert all claims be the sole and exclusive post-Closing remedy available to Parent and Merger Subsidiary for indemnification pursuant any claim related to Section 7.17(b), if at all, on this Agreement or before the date which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Datetransactions contemplated hereby, except for a claim based on with respect to claims arising out of fraud, or the willful breach of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Datecovenants by a party hereto.
Appears in 1 contract
Survival of Representations and Warranties Indemnification. (aA) The representations and warranties of the parties herein contained shall survive the closing of the purchase contemplated by this Agreement, notwithstanding any investigation at any time made by or on behalf of the other party, provided that any claims for indemnification in accordance with Article II, Section 2 below with respect to any representation or warranty must be made (and will be null and void unless made) on or before the date twenty-four months following the Closing Date (except in the case of representations contained in Articles 4 Paragraphs (B)(vi), (G), (J) and 5 (K) of this Agreement shall survive for a period of Article I, Section 1 hereof, which must be made within six months from following the effective date hereof, 52 provided, however, that expiration of the representation in Section 5.6 hereof shall survive for a period applicable statute of two years from the effective date hereoflimitations.
(bB) Vendell The Company and each Vendell Subsidiary jointly Dabb▇, ▇▇intly and severallyseverally (except that Dabb▇ ▇▇▇ll have no liability with respect to representations and warranties made in Section 3 of Article I), in accordance with the Escrow Agreement, hereby agree to indemnify and hold harmless Buyer, and each officerParent, director, employee, shareholder or other agent thereof and their respective estates (each being a "Buyer Indemnified Party")officers, directors, stockholders, affiliates, employees, representatives and other agents harmless from and against any and all claims, liabilities, losses, damagesdamages or injuries, liabilities, and expenses (including without limitation, settlement together with costs and any expenses, including reasonable legal fees, arising out of or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Buyer Indemnified Party in connection with each and all of the following:
resulting from (i) any breach, misrepresentation or breach material omission of any warranty the representations and warranties made by Seller in the Company and Dabb▇ ▇▇ this Agreement;
, (ii) any breach in any material respect by the nonfulfillment or breach Company and Dabb▇, ▇▇ either of them, unless waived in writing by the Buyer, of any covenant, agreement, covenant or obligation of Seller agreement contained in or contemplated by arising out of this Agreement;
, or any other agreement delivered in connection herewith on the Closing Date to which the Company is a party, (iii) the Business conducted by the Company prior to the Closing Date, (iv) any misrepresentation and all liabilities of the Company, other than the Assumed Liabilities, and (v) any failure by Dabb▇ ▇▇ the Company to comply with any provisions of the bulk sales or breach similar laws of any warranty contained in any statement, certificate, or other document executed by Seller pursuant jurisdiction which are applicable to this Agreement or the transactions contemplated hereby.
(C) Notwithstanding anything to the contrary set forth above or elsewhere in this Agreement, and except with respect to claims arising from, or damages suffered by Buyer in connection with, a breach of the representations contained in Paragraphs (B) (vi), (G), (J) and (K) of Article I, Section 1 hereof which are addressed below, the Company, Dabb▇ ▇▇▇ Optimum in the aggregate shall not have any obligation to indemnify Buyer for, nor pay to Buyer, any amount for any claims or causes of action arising under this Agreement that would cause the aggregate amounts theretofore paid or to be paid by them to exceed the Aggregate Ceiling (as defined below), after which point neither the Company, Dabb▇ ▇▇▇ Optimum will have any further obligation to indemnify Buyer. For claims made prior to the first anniversary of the Closing Date, the Aggregate Ceiling shall be $2,500,000. For claims made on or after the first anniversary of the Closing Date and prior to the second anniversary of the Closing Date, the Aggregate Ceiling shall be reduced to $1,250,000 minus fifty (50%) percent of the amounts paid to Buyer with respect to all claims made by Buyer in the first year following the Closing Date, provided that if fifty (50%) of the amounts paid to Buyer on claims made in such first year equal or exceed $1,250,000 in the aggregate, then the Aggregate Ceiling for the second year shall be $0. A claim shall be deemed to be made under this Agreement when written notice thereof (describing the claim in reasonable detail and specificity) is received by the party to whom a claim is made against. The joint and several indemnification obligations of the Company and Dabb▇ ▇▇▇ breaches of the representations contained in Paragraphs (B) (vi), (G), (J) and (K) of Article I, Section 1 hereof shall not exceed $2,500,000 in the aggregate. Notwithstanding anything to the contrary contained in this Agreement, the total monetary liability of the Company, Dabb▇ ▇▇▇ Optimum for any claims or causes of action arising under or in connection with the transaction contemplated by this Agreement;
(iv) any misrepresentation or breach of , shall not exceed $2,500,000 in the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and
(v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liabilityaggregate.
(cD) CCS shall, indemnify, defend, Buyer hereby agrees to indemnify and hold harmless, Vendell, each Vendell Subsidiary the Company and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), Dabb▇ ▇▇▇mless from and against any and all claims, liabilities, losses, damagesdamages or injuries, liabilities, and expenses (including, without limitation, settlement together with costs and any expenses, including reasonable legal fees, arising out of or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Seller Indemnified Party in connection with each and all of the following:
resulting from (i) any breach, misrepresentation or breach of any warranty material omission in the representations and warranties made by Seller the Buyer in this Agreement;
, (ii) any breach in any material respect by Buyer, unless waived in writing by the nonfulfillment or breach Company, of any covenant, agreement, covenant or obligation agreement of Seller Buyer contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement; and
(iv) any attempt (whether or not successful) by any person to cause or require such Seller Indemnified Party to pay or discharge any Assumed Liabilities.
(d) Subject to the provisions of the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party of any claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 arising out of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without the prior written consent of the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
(iiii) the indemnifying party shall be excused fromBusiness as conducted by Buyer, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlement.
(e) Until all Buyer Indemnified Parties have incurred losses aggregating $100,000, no amounts shall be paid to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000.
(f) Buyer shall assert all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from after the Closing Date.
(E) By joining in the execution of this Agreement, Parent, jointly and severally with Buyer, hereby agrees to indemnify and hold the Company and Dabb▇ ▇▇▇mless from and against any and all claims, liabilities, losses, damages or injuries, together with costs and expenses, including reasonable legal fees, arising out of or resulting from any breach, misrepresentation or material omission in the representations and warranties made by Buyer in this Agreement and the failure of Buyer to perform any covenant of or agreement in this Agreement.
Appears in 1 contract
Survival of Representations and Warranties Indemnification. (a) The respective representations and warranties of the parties contained in Articles 4 Pointe and 5 of this Agreement Republic herein shall survive for a period of six months from the effective date hereof, 52 provided, however, that the representation in Section 5.6 hereof shall survive for a period of two years from the effective date hereofClosing Date.
(b) Vendell Republic shall indemnify and each Vendell Subsidiary jointly hold Pointe harmless against any claims or damages, including reasonable attorneys' fees and severallyexpenses, to the extent that the same are ultimately held in a final judgment (with respect to which all appeals have expired or been denied) to have resulted from (i) the breach by Republic of any Deposit Account, Loan, Contract, or Other Loan assigned to or assumed by Pointe hereunder or pursuant to the Participations or from the conduct of Republic or its agents in connection with the operation of the Subject Office on or prior to the Closing Date, (ii) from any misrepresentation or breach of warranty or failure to perform any agreement by Republic hereunder, (iii) as the result of any undisclosed encumbrance, liability, claim or commitment, contingent or otherwise, adversely affecting any of the Subject Offices, the Deposit Accounts, the Loans, the Contracts, the Lease, the Fixed Assets and the Participations, including without limitation, any tax or other claims, liens, or liabilities, actions, claims or proceedings arising out of events prior to the Closing Date, or (iv) from any other finally adjudicated liability of Republic with respect to the Subject Offices not expressly assumed by Pointe under or pursuant this Agreement.
(c) Pointe shall indemnify and hold Republic harmless against any claims or damages, including reasonable attorneys', fees and expenses, to the extent that the same are ultimately held in a final judgment (with respect to which all appeals have expired or been denied) to have resulted from (i) the breach by Pointe of any Deposit Account, Loan or Contract assigned to or assumed by Pointe hereunder or from the conduct of Pointe or its agents in connection with the operation of the Subject Offices subsequent to the Closing Date, (ii) from any misrepresentation or breach of warranty or failure to perform any agreement by Pointe hereunder, including but not limited to the failure to perform in accordance with the Escrow Agreementterms of all of the obligations assumed hereunder, agree or (iii) any actions taken by Republic in connection with the processing of items pursuant to indemnify and hold harmless BuyerSection 7(c) hereof.
(d) In the event that Republic or Pointe learns of any claim which may give rise to a claim for indemnification under Section 12(b) or (c), and each officer, director, employee, shareholder or other agent thereof and their respective estates the party learning of such claim (each being a "Buyer Indemnified Party"), from as a precondition to making a claim for indemnification thereunder, shall give prompt notice of the commencement thereof in writing to the other ("Indemnifying Party"). In case any such claim is brought against the Indemnified Party and against any the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled to participate therein and all claimsto the extent that it may wish to assume control of the defense thereof, losses, damages, liabilitieswith counsel reasonably satisfactory to the Indemnified Party, and expenses (including without limitationafter notice from the Indemnifying Party to the Indemnified Party of its election so to assume control of the defense of such claims with such counsel, settlement costs and the Indemnifying Party will not be liable to the Indemnified Party for any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably subsequently incurred by such Buyer the Indemnified Party in connection with each and all of the following:
(i) any misrepresentation or breach of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transaction contemplated by this Agreement;
(iv) any misrepresentation or breach of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and
(v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liability.
(c) CCS shall, indemnify, defend, and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), from and against any and all claims, losses, damages, liabilities, and expenses (including, without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Seller Indemnified Party in connection with each and all of the following:
(i) any misrepresentation or breach of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement; and
(iv) any attempt (whether or not successful) by any person to cause or require such Seller Indemnified Party to pay or discharge any Assumed Liabilities.
(d) Subject to the provisions of the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party of any claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without the prior written consent than reasonable costs of the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
(i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlementinvestigation.
(e) Until Republic shall indemnify Pointe against any and all Buyer Indemnified Parties have incurred losses aggregating $100,000information reporting, no amounts backup withholding, customer tax payer identification number certification, nonresident alien status certification or "due diligence" penalties assessed against Pointe as a result of Republic's failure to comply with the applicable Internal Revenue Service regulations in connection with the Deposit Accounts. This indemnification shall be paid to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000.
(f) Buyer shall assert all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date which is six months from survive the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing DateDate without limitation.
Appears in 1 contract
Sources: Branch Purchase and Deposit Assumption Agreement (Pointe Financial Corp)
Survival of Representations and Warranties Indemnification. (a) The representations and warranties of the parties Companies contained in Articles 4 and 5 of this Agreement Agreement, or in any certificate or other instrument delivered in connection herewith, shall survive for the Closing and shall expire six (6) months after the Closing Date, provided that if any party hereto, before expiration of a period representation or warranty given by another party hereto, delivers to such other party a written notice alleging a breach of six months from such representation or warranty, the effective date hereof, 52 provided, however, that the applicable representation in Section 5.6 hereof or warranty shall survive until, but only for a period purposes of, the resolution of two years from the effective date hereofmatter covered by such notice.
(b) Vendell From and after the date hereof, each Vendell Subsidiary Company shall, jointly and severally, in accordance with the Escrow Agreementdefend, agree to indemnify and hold harmless BuyerPurchaser, and each officer, director, employee, shareholder or other agent thereof Parent and their respective estates Affiliates (each being a "Buyer “Purchaser Indemnified Party")”) from, from against and against in respect of any and all claims, losses, damagescosts, expenses, obligations, liabilities, and expenses (including without limitation, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably incurred by such Buyer Indemnified Party in connection with each and all of the following:
(i) any misrepresentation or breach of any warranty made by Seller in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transaction contemplated by this Agreement;
(iv) any misrepresentation or breach of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and
(v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liability.
(c) CCS shall, indemnify, defend, and hold harmless, Vendell, each Vendell Subsidiary and each officer, director, employee, shareholder, or other agent thereof and their respective estates (each being a "Seller Indemnified Party"), from and against any and all claims, losses, damages, liabilities, recoveries and expenses deficiencies (including, without limitation, settlement costs interest, penalties and any legal or other fees or expenses for investigating or defending any actions or threatened actionsreasonable attorneys’ fees) reasonably incurred by (“Losses”), that such Seller Purchaser Indemnified Party may incur, sustain or suffer resulting from or arising out of (directly or indirectly) or in connection with each and all of the following:
(i) any misrepresentation or breach of or any inaccuracy in any representation or warranty made by Seller of any Company contained in this Agreement;
(ii) the nonfulfillment or breach of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, other certificate or other document executed delivered by Seller pursuant to this Agreement Agreement, or in any Schedule or Exhibit hereto or thereto, and/or (ii) any breach or failure to perform any covenant or agreement of any Company contained in this Agreement.
(c) In the event that any Purchaser Indemnified Party shall have incurred, sustained or suffered any Loss with respect to which it is entitled to be indemnified under Section 4(b) above resulting from or arising out of (directly or indirectly) or in connection with the transactions contemplated by this Agreement; and
(iv) any attempt (whether breach of or not successful) by any person to cause inaccuracy in any representation or require such Seller Indemnified Party to pay or discharge any Assumed Liabilities.
(d) Subject to the provisions of the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party warranty of any claimCompany contained in [Section 2(m) (other than any income or franchise Taxes),] Section 2(q) or Section 2(r) above, demandParent shall, actionin addition to any other rights Purchaser or Parent may have against the Companies, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume set-off the defense thereof using counsel reasonably acceptable full amount of such Loss against the payments due under the Note, in which event the Note shall be deemed to the indemnified partybe automatically amended accordingly. The indemnified party In addition, Parent shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without set-off against the prior written consent of payments due under the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and Note the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
(i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the full amount of the proposed settlement if Losses contemplated in Section 9(f)(iv) below, in which event the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlement.
(e) Until all Buyer Indemnified Parties have incurred losses aggregating $100,000, no amounts Note shall be paid deemed to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000automatically amended accordingly.
(f) Buyer shall assert all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Date.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Us Dry Cleaning Corp)
Survival of Representations and Warranties Indemnification. (a) The All representations and warranties of contained herein or made in writing by any party in connection herewith will survive the parties contained in Articles 4 execution and 5 delivery of this Agreement shall survive for a period of six months from the effective date hereof, 52 provided, however, that the representation in Section 5.6 hereof shall survive for a period of two years from the effective date hereofAgreement.
(b) Vendell In consideration of the Purchaser's execution and each Vendell Subsidiary jointly delivery of this Agreement and severally, acquisition of the Series C Preferred Shares hereunder and in accordance with addition to all of the Escrow Corporation's other obligations under this Agreement, agree to the Corporation shall defend, protect, indemnify and hold harmless Buyer, the Purchaser and each officerother holder of Series C Preferred Shares and/or Underlying Shares and all of their officers, directordirectors, employeeemployees and agents (collectively, shareholder or other agent thereof and their respective estates (each being a the "Buyer Indemnified PartyPURCHASER INDEMNITEES"), ) from and against any and all actions, causes of action, suits, claims, losses, damagescosts, penalties, fees, liabilities, obligations and damages, and expenses in connection therewith (irrespective of whether any such Purchaser Indemnitee is a party to the action for which indemnification hereunder is sought), and including without limitationreasonable attorneys' fees and disbursements (collectively, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably the "PURCHASER INDEMNIFIED LIABILITIES"), incurred by such Buyer Indemnified Party in connection with each and all the Purchaser Indemnitees or any of the following:
them as a result of, or arising out of, or relating to (i) any misrepresentation finder's or brokerage fees not disclosed by the Corporation, or (ii) any material breach of, or inaccuracy of, any representation, warranty or covenant of any warranty made by Seller the Corporation contained in this Agreement;
(ii) . To the nonfulfillment or breach extent that the foregoing undertaking by the Corporation may be unenforceable for any reason, the Corporation shall make the maximum contribution to the payment and satisfaction of any covenant, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transaction contemplated by this Agreement;
(iv) any misrepresentation or breach each of the warranties of Seller made in Section 4.14 hereof, with such representations and warranties being construed as if they were not qualified by the knowledge of Seller, to the extent such misrepresentation or breach Purchaser Indemnified Liabilities which is based upon alleged breach of or noncompliance with healthcare regulatory Laws and are alleged in a third party claim, whether brought by a Governmental or Regulatory Authority or any other Person; and
(v) any attempt (whether or not successful) by any person to cause or require such Buyer Indemnified Party to pay or discharge any Liability other than an Assumed Liabilitypermissible under applicable law.
(c) CCS shallIn consideration of the Corporation's execution and delivery of this Agreement and sale of the Series C Preferred Shares hereunder and in addition to all of the Purchasers' other obligations under this Agreement, indemnify, the Purchaser shall defend, protect, indemnify and hold harmlessharmless the Corporation and all of its officers, Vendelldirectors, each Vendell Subsidiary employees and each officeragents (collectively, director, employee, shareholder, or other agent thereof and their respective estates (each being a the "Seller Indemnified PartyCORPORATION INDEMNITEES"), ) from and against any and all actions, causes of action, suits, claims, losses, damagescosts, penalties, fees, liabilities, obligations and damages, and expenses in connection therewith (includingirrespective of whether any such Corporation Indemnitee is a party to the action for which indemnification hereunder is sought), without limitationand including reasonable attorneys' fees and disbursements (collectively, settlement costs and any legal or other fees or expenses for investigating or defending any actions or threatened actions) reasonably the "CORPORATION INDEMNIFIED LIABILITIES"), incurred by such Seller Indemnified Party in connection with each and all the Corporation Indemnitees or any of the following:
them as a result of, or arising out of, or relating to (i) any misrepresentation finder's or brokerage fees not disclosed by such Purchaser, or (ii) any material breach of, or inaccuracy of, any representation, warranty or covenant of any warranty made by Seller such Purchaser contained in this Agreement;
(ii) . To the nonfulfillment or breach of extent that the foregoing undertaking by the Purchaser may be unenforceable for any covenantreason, agreement, or obligation of Seller contained in or contemplated by this Agreement;
(iii) any misrepresentation or breach of any warranty contained in any statement, certificate, or other document executed by Seller pursuant to this Agreement or in connection with the transactions contemplated by this Agreement; and
(iv) any attempt (whether or not successful) by any person to cause or require such Seller Indemnified Party to pay or discharge any Assumed Liabilities.
(d) Subject Purchaser shall make the maximum contribution to the provisions payment and satisfaction of each of the Escrow Agreement, if in effect, an indemnified party shall promptly notify the indemnifying party of any claim, demand, action, or proceeding for which indemnification will be sought under this Section 7.17 of this Agreement, and, if such claim, demand, action, or proceeding is a third party claim, demand, action, or proceeding, the indemnifying party will have the right at its expense to assume the defense thereof using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate, at its own expense, with respect to any such third party claim, demand, action, or proceeding. In connection with any such third party claim, demand, action, or proceeding, Buyer and Seller shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third party claim, demand, action, or proceeding shall be settled without the prior written consent of the indemnified party. If a firm written offer is made to settle any such third party claim, demand, action, or proceeding and the indemnifying party proposes to accept such settlement, and the indemnified party refuses to consent to such settlement, then:
(i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such third party claim, demand, action, or proceeding; and (ii) the maximum liability of the indemnifying party relating to such third party claim, demand, action, or proceeding shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such third party claim, demand, action, or proceeding is greater than the amount of the proposed settlement.
(e) Until all Buyer Corporation Indemnified Parties have incurred losses aggregating $100,000, no amounts shall be paid to the Buyer Indemnified Party seeking indemnification from the Escrow Fund or otherwise. In the event such losses exceed $100,000 in the aggregate, the Buyer Indemnified Parties shall be entitled to payment from the Escrow Fund for all losses suffered which exceed $100,000, but shall not be authorized to otherwise seek monetary recourse from Vendell or the Vendell Subsidiaries. The aggregate monetary Damages of Vendell and the Vendell Subsidiaries to Buyer hereunder shall not exceed $500,000.
(f) Buyer shall assert all claims for indemnification pursuant to Section 7.17(b), if at all, on or before the date Liabilities which is six months from the Closing Date. Seller shall assert all claims for indemnification pursuant to Section 7.17(c), if at all, on or before the date which is six months from the Closing Date, except for a claim based on the breach of the representations of Section 5.6 hereof, which claim shall be asserted on or before the date which is two years from the Closing Datepermissible under applicable law.
Appears in 1 contract
Sources: Series C Preferred Stock Purchase Agreement (Heisley Michael E Et Al)