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

Survival of Representations and Warranties Indemnities. (a) The ------------------------------------------------------- representations and warranties included or provided for in this Agreement shall survive for a period of two years from the Closing Date; provided that such survival shall continue during the pendency of any suit, action, claim or other proceeding brought in respect of such representations and warranties prior to the termination of such two-year period; and provided, further, that the representations and warranties contained in Section 2.5 shall survive the Closing indefinitely. The Company agrees to indemnify, defend and hold harmless the Purchasers, their respective permitted successors and assigns and the respective affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934) of such Purchasers and such respective permitted successors and assigns (collectively, the "Purchaser Indemnified Parties") from and against and in respect of any demand, action, damage, deficiency, liability, loss, cost or expense (including, without limitation, reasonable counsel fees incurred in litigation or otherwise) to the Purchaser Indemnified Parties arising out of any breach of representation or warranty or nonfulfillment by it of any agreement or covenant contained herein (collectively "Purchaser Indemnified Party Losses"); provided, however, that the Company's indemnification obligations under this Section 9(a) shall arise only in the event that the accumulated amount of all Purchaser Indemnified Party Losses, in the aggregate, shall exceed $100,000. If the accumulated amount of all Purchaser Indemnified Party Losses in the aggregate exceeds $100,000, the Company shall then be liable on a dollar for dollar basis for the full amount of all Purchaser Indemnified Party Losses. The Purchasers and the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to any claim under the foregoing provisions of this Section 9 as to which notice shall not have been given by a Purchaser Indemnified Party to the Company within two years of the date of occurrence of the events giving rise to such claim, or, with respect to indemnification for claims arising out of the breach of the representations and warranties contained in Section 2.5, within two years from the date of discovery of the breach by the Purchaser Indemnified Parties. (b) Each of the Purchasers agrees to indemnify, defend and hold harmless the Company from and against and in respect of any demand, action, damage, deficiency, liability, loss, cost or expense (including, without limitation, reasonable counsel fees incurred in litigation or otherwise) to the Company arising out of any material breach of any representation or warranty or nonfulfillment by such Purchaser of any agreement or covenant contained herein (collectively "Company Losses"); provided, however, that each Purchaser's indemnification obligations under this Section 9(b) shall arise only in the event that the accumulated amount of all Company Losses attributable to all Purchasers shall exceed $100,000 in the aggregate. If the accumulated amount of all Company Losses in the aggregate exceeds $100,000 each Purchaser shall then be liable on a dollar-for-dollar basis for the full amount of all Company Losses attributable to such Purchaser. The Company shall not be entitled to indemnification with respect to any claim under the foregoing provision of this Section 9 as to which notice shall not have been given by the Company to such Purchaser within two years of the date of the occurrence of the event giving rise to such claim. (c) Promptly after receipt by an indemnified party under this Agreement of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under Section 7.5 or Section 9 hereof, notify the indemnifying party in writing of the claim or the commencement of that action. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under Section 7.5 or Section 9 hereof for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, -------- however, that the Purchasers shall have the right to employ counsel to represent ------- jointly the Purchasers and their respective controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Purchasers against the Company under Section 7.5 hereof if, in the reasonable judgment of the Purchasers, it is advisable for the Purchasers and such controlling persons to be jointly represented by separate counsel, and in that event the fees and expenses of such separate counsel shall be paid by the Company.

Survival of Representations and Warranties Indemnities. (a) The ------------------------------------------------------- several covenants, representations and warranties included or provided for in this Agreement of the parties herein contained shall survive for a period of two years from the Closing Date; provided that any claims for indemnification with respect to any representation or warranty in accordance with Section 9.3(b)(i) and 9.3(c)(i) below shall be null and void unless made on or before the second anniversary of the Closing Date provided, however, that such survival 2 year period shall continue during the pendency of any suit, action, claim or other proceeding brought in respect of such representations and warranties prior be extended to the termination expiration date of such two-year period; and provided, further, that the applicable statute of limitations with respect to claims for indemnification in connection with the representations and warranties contained in Section 2.5 shall survive the Closing indefinitely. The Company agrees to indemnifySections 5.1, defend 5.2, 5.5, 5.11, 5.13, 5.14, 6.1 and hold harmless the Purchasers, their respective permitted successors and assigns and the respective affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934) of such Purchasers and such respective permitted successors and assigns (collectively, the "Purchaser Indemnified Parties") from and against and in respect of any demand, action, damage, deficiency, liability, loss, cost or expense (including, without limitation, reasonable counsel fees incurred in litigation or otherwise) to the Purchaser Indemnified Parties arising out of any breach of representation or warranty or nonfulfillment by it of any agreement or covenant contained herein (collectively "Purchaser Indemnified Party Losses"); provided, however, that the Company's indemnification obligations under this Section 9(a) shall arise only in the event that the accumulated amount of all Purchaser Indemnified Party Losses, in the aggregate, shall exceed $100,000. If the accumulated amount of all Purchaser Indemnified Party Losses in the aggregate exceeds $100,000, the Company shall then be liable on a dollar for dollar basis for the full amount of all Purchaser Indemnified Party Losses. The Purchasers and the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to any claim under the foregoing provisions of this Section 9 as to which notice shall not have been given by a Purchaser Indemnified Party to the Company within two years of the date of occurrence of the events giving rise to such claim, or, with respect to indemnification for claims arising out of the breach of the representations and warranties contained in Section 2.5, within two years from the date of discovery of the breach by the Purchaser Indemnified Parties6.2. (b) Each of the Purchasers Seller and Parent, jointly and severally, hereby agrees to indemnify, defend indemnify and hold Buyer and Westcon (and their Affiliates and each of their shareholders, directors, officers, employees, consultants, agents, successors and assigns) harmless the Company from and against any and in respect of any demandall claims, actionliabilities, damagelosses, deficiencydamages or injuries, liabilitytogether with costs and expenses, lossincluding reasonable legal fees (collectively, cost or expense (including, without limitation, reasonable counsel fees incurred in litigation or otherwise"Buyer's Losses") to the Company arising out of or resulting from (i) any material breach of inaccuracy in any representation or warranty made by Seller or nonfulfillment Parent in this Agreement, (ii) any breach by such Purchaser Seller or Parent, unless waived by Buyer, of any covenant or agreement of Seller or covenant Parent contained herein in this Agreement, (collectively iii) the Business or operation of the Business prior to the Closing or any act, or failure to act, relating to the Business prior to the Closing, (iv) any of the Excluded Liabilities or Excluded Assets, and (v) any Taxes of Seller (or Taxes of any other Person for which Seller may have liability) with respect to (A) any Tax described in Section 9.9(c) hereof, or (B) any Tax period ending on or before the Closing Date (or for any Tax period ending after the Closing Date to the extent allocable (determined in a manner consistent with Section 9.9 hereof) to the portion of such period beginning before and ending on the Closing Date). (c) Each of Buyer and Westcon, jointly and severally, hereby agrees to indemnify and hold Seller and Parent (and their Affiliates and each of their shareholders, directors, officers, employees, consultants, agents, successors and assigns) harmless from and against any and all claims, liabilities, losses, damages or injuries, together with costs and expenses, including reasonable legal fees, (collectively, "Company Seller's Losses"); ) arising out of or resulting from (i) any inaccuracy in any representation or warranty made by Buyer or Westcon in this Agreement, (ii) any breach by Buyer or Westcon, unless waived by Seller, of any covenant or agreement of Buyer or Westcon contained in this Agreement, (iii) the Business or operation of the Business after the Closing or any act, or failure to act, relating to the Business after the Closing, (or) (iv) any of the Assumed Liabilities. (d) If any third party shall notify any party hereto (the "Indemnified Party", which term shall be deemed to include such party's Affiliates and each of their shareholders, directors, officers, employees, consultants, agents, successors and assigns, to the extent applicable) with respect to any matter which may give rise to a claim for indemnification against any other party hereto (the "Indemnifying Party") under this Agreement, then the Indemnified Party shall notify each Indemnifying Party thereof promptly, provided, however, that each Purchaser's indemnification obligations under this Section 9(bno delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extent) shall arise only in the Indemnifying Party thereby is materially prejudiced as a result of such delay. In the event any Indemnifying Party notifies the Indemnified Party within thirty (30) days after the Indemnified Party has given notice of the matter that the accumulated amount of all Company Losses attributable to all Purchasers shall exceed $100,000 in Indemnifying Party is assuming the aggregate. If defense thereof, (A) the accumulated amount of all Company Losses in Indemnifying Party will defend the aggregate exceeds $100,000 each Purchaser shall then be liable on a dollar-for-dollar basis for the full amount of all Company Losses attributable to such Purchaser. The Company shall not be entitled to indemnification with respect to any claim under the foregoing provision of this Section 9 as to which notice shall not have been given by the Company to such Purchaser within two years of the date of the occurrence of the event giving rise to such claim. (c) Promptly after receipt by an indemnified party under this Agreement of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made Indemnified Party against the indemnifying party under Section 7.5 or Section 9 hereof, notify the indemnifying party in writing of the claim or the commencement of that action. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof matter with counsel of its choice reasonably satisfactory to the indemnified party. After notice from Indemnified Party, (B) the indemnifying party to the indemnified party of Indemnified Party may retain separate co-counsel at its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under Section 7.5 or Section 9 hereof for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, -------- however, sole cost and expense (except that the Purchasers shall have the right to employ counsel to represent ------- jointly the Purchasers and their respective controlling persons who may Indemnifying Party will be subject to liability arising out of any claim in respect of which indemnity may be sought by the Purchasers against the Company under Section 7.5 hereof if, in the reasonable judgment of the Purchasers, it is advisable responsible for the Purchasers and such controlling persons to be jointly represented by separate counsel, and in that event the fees and expenses of such the separate co-counsel shall to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest), (C) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the matter without of the written consent of the Indemnifying Party (not to be paid by unreasonably withheld or delayed), and (D) the Company.Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto, without the written consent of the Indemnified Party (not to be unreasonably withheld or delayed). In the event that the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the Indemnified Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, however, the Indemnified Party may defend against, or enter into any settlement with respect to, the matter in any manner it reasonably may deem

Survival of Representations and Warranties Indemnities. (a) The ------------------------------------------------------- All covenants and agreements of the parties made in this Agreement or provided herein shall survive the Closing Date to the extent expressly provided herein. All representations and warranties included or provided for of the parties made in this Agreement or as provided herein shall be made as of the date hereof and shall survive the Closing for a period of two years from (the "Survival Period"), except --------------- that (a) any intentional or knowing misrepresentation shall survive the Closing Date; provided that such survival indefinitely, and (b) Sections 3.1(a), (b), (d), (h), (n) and (p) and Section 3.2(a) shall continue during survive the pendency expiration of the fifteen (15) day period commencing on the expiration date of the relevant statute of limitations period (including any suitapplicable extensions thereof), action, claim or other proceeding brought in respect of such representations and warranties prior to if longer than the termination of such two-year period; period previously specified (provided that if there is no relevant statute of limitations, survival shall be indefinite), unless survival is governed by the preceding clause (a). (b) The BSC Shareholders (other than the Custodial Shareholder), jointly and providedseverally, furtherhereby agree to defend, that indemnify and hold SBI and its Subsidiaries and their officers, directors and employees (collectively, the "SBI --- Indemnitees") harmless from and against any and all claims, liabilities, losses, ----------- damages, deficiencies, penalties, fines, costs or expenses (including, without limitation, the fees and expenses of investigation and counsel) (collectively, "Losses"), arising out of or resulting from (i) any breach of the ------ representations and warranties contained in Section 2.5 shall survive 3.1; (ii) any breach in any material respect by the Closing indefinitelyBSC Shareholder or BSC of any covenant or agreement of the BSC Shareholder or BSC contained in or arising out of this Agreement or (iii) any and all actions, suits, proceedings, claims, demands, assessments and judgments incidental to the foregoing to the enforcement of such indemnification. The Company Each BSC Shareholder, jointly and severally, hereby agrees to indemnifydefend, defend indemnify and hold the SBI Indemnitees harmless the Purchasers, their respective permitted successors and assigns and the respective affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934) of such Purchasers and such respective permitted successors and assigns (collectively, the "Purchaser Indemnified Parties") from and against any and in respect of any demand, action, damage, deficiency, liability, loss, cost or expense (including, without limitation, reasonable counsel fees incurred in litigation or otherwise) to the Purchaser Indemnified Parties all Losses arising out of or resulting from any breach of representation or warranty or nonfulfillment by it of any agreement or covenant contained herein (collectively "Purchaser Indemnified Party Losses"); provided, however, that the Company's indemnification obligations under this Section 9(a) shall arise only in the event that the accumulated amount of all Purchaser Indemnified Party Losses, in the aggregate, shall exceed $100,000. If the accumulated amount of all Purchaser Indemnified Party Losses in the aggregate exceeds $100,000, the Company shall then be liable on a dollar for dollar basis for the full amount of all Purchaser Indemnified Party Losses. The Purchasers and the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to any claim under the foregoing provisions of this Section 9 as to which notice shall not have been given by a Purchaser Indemnified Party to the Company within two years of the date of occurrence of the events giving rise to such claim, or, with respect to indemnification for claims arising out of the breach of the representations and warranties contained in Section 2.5, within two years from the date of discovery of the breach by the Purchaser Indemnified Parties. (b) Each of the Purchasers agrees to indemnify, defend and hold harmless the Company from and against and in respect of any demand, action, damage, deficiency, liability, loss, cost or expense (including, without limitation, reasonable counsel fees incurred in litigation or otherwise) to the Company arising out of any material breach of any representation or warranty or nonfulfillment by such Purchaser of any agreement or covenant BSC Shareholder contained herein (collectively "Company Losses"); provided, however, that each Purchaser's indemnification obligations under this in Section 9(b) shall arise only in the event that the accumulated amount of all Company Losses attributable to all Purchasers shall exceed $100,000 in the aggregate. If the accumulated amount of all Company Losses in the aggregate exceeds $100,000 each Purchaser shall then be liable on a dollar-for-dollar basis for the full amount of all Company Losses attributable to such Purchaser. The Company shall not be entitled to indemnification with respect to any claim under the foregoing provision of this Section 9 as to which notice shall not have been given by the Company to such Purchaser within two years of the date of the occurrence of the event giving rise to such claim3.2. (c) Promptly after receipt by an indemnified party under this Agreement of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under Section 7.5 or Section 9 hereof, notify the indemnifying party in writing of the claim or the commencement of that action. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under Section 7.5 or Section 9 hereof for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, -------- however, that the Purchasers shall have the right to employ counsel to represent ------- jointly the Purchasers and their respective controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Purchasers against the Company under Section 7.5 hereof if, in the reasonable judgment of the Purchasers, it is advisable for the Purchasers and such controlling persons to be jointly represented by separate counsel, and in that event the fees and expenses of such separate counsel shall be paid by the Company.

Survival of Representations and Warranties Indemnities. (a) The ------------------------------------------------------- representations and warranties included or provided for in this Agreement shall survive for a period of two years from the Closing Date; provided that such survival shall continue during the pendency of any suit, action, claim or other proceeding brought in respect of such representations and warranties prior to the termination of such two-year period; and provided, further, that the representations and warranties contained in Section 2.5 shall survive the Closing indefinitely. The Company agrees to indemnify, defend and hold harmless the Purchasers, their respective permitted successors and assigns and the respective affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934) of such Purchasers and such respective permitted successors and assigns (collectively, the "Purchaser Indemnified Parties") from and against and in respect of any demand, action, damage, deficiency, liability, loss, cost or expense (including, without limitation, reasonable counsel fees incurred in litigation or otherwise) to the Purchaser Indemnified Parties arising out of any breach of representation or warranty or nonfulfillment by it of any agreement or covenant contained herein (collectively "Purchaser Indemnified Party Losses"); provided, however, that the Company's indemnification obligations under this Section 9(a) shall arise only in the event that the accumulated amount of all Purchaser Indemnified Party Losses, in the aggregate, shall exceed $100,000. If the accumulated amount of all Purchaser Indemnified Party Losses in the aggregate exceeds $100,000, the Company shall then be liable on a dollar for dollar basis for the full amount of all Purchaser Indemnified Party Losses. The Purchasers and the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to any claim under the foregoing provisions of this Section 9 as to which notice shall not have been given by a Purchaser Indemnified Party to the Company within two years of the date of occurrence of the events giving rise to such claim, or, with respect to indemnification for claims arising out of the breach of the representations and warranties contained in Section 2.5, within two years from the date of discovery of the breach by the Purchaser Indemnified Parties. (b) Each of the Purchasers agrees to indemnify, defend and hold harmless the Company from and against and in respect of any demand, action, damage, deficiency, liability, loss, cost or expense (including, without limitation, reasonable counsel fees incurred in litigation or otherwise) to the Company arising out of any material breach of any representation or warranty or nonfulfillment by such Purchaser of any agreement or covenant contained herein (collectively "Company Losses"); provided, however, that each Purchaser's indemnification obligations under this Section 9(b) shall arise only in the event that the accumulated amount of all Company Losses attributable to all Purchasers shall exceed $100,000 in the aggregate. If the accumulated amount of all Company Losses in the aggregate exceeds $100,000 each Purchaser shall then be liable on a dollar-for-dollar basis for the full amount of all Company Losses attributable to such Purchaser. The Company shall not be entitled to indemnification with respect to any claim under the foregoing provision of this Section 9 as to which notice shall not have been given by the Company to such Purchaser within two years of the date of the occurrence of the event giving rise to such claim. (c) Promptly after receipt by an indemnified party under this Agreement of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under Section 7.5 or Section 9 hereof, notify the indemnifying party in writing of the claim or the commencement of that action. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under Section 7.5 or Section 9 hereof for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, -------- however, that the Purchasers shall have the right to employ counsel to represent ------- jointly the Purchasers and their respective controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Purchasers against the Company under Section 7.5 hereof if, in the reasonable judgment of the Purchasers, it is advisable for the Purchasers and such controlling persons to be jointly represented by separate counsel, and in that event the fees and expenses of such separate counsel shall be paid by the Company.;