Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000. (b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold. (c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms. (d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 2 contracts
Sources: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (GL Trade Overseas, Inc.)
Certain Limitations. Notwithstanding anything contained in this Article VIII to the contrary:
(a) Notwithstanding anything contained herein Indemnitor shall not have any liability under Section 8.2(a) or Section 8.3(a) above (as the case may be) unless the aggregate of all Losses and Litigation Expenses relating thereto for which Indemnitor would, but for this proviso, be liable exceeds $1,200,000 (the “Basket”) on a cumulative basis and then only to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement extent of any such excess; and the Asset Purchase Agreement aggregate liability of an Indemnitor pursuant to Section 10.1(a8.2(a) or Section 8.3(a) above (other than Section 10.1(a)(v)as the case may be) and Section 10.1(a) of the Asset Purchase Agreement shall in excess of no event exceed an amount equal to $1,775,000,000; provided that with the amount finally set forth on Schedule A to the Limited Liability Company Agreement as the “Value of the Initial Capital Contribution” of ▇▇▇▇▇▇. For purposes of calculating the Basket, Losses and Litigation Expenses shall be determined without regard to any qualification of any representation or warranty in any respect to Datatel Losses pursuant to Section 10.1(a)(i)by knowledge, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000materiality or material adverse effect.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties The amount of indemnifiable Losses and Litigation Expenses incurred by Indemnitee under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”)Article VIII, whereupon such indemnification shall be made (a) reduced by SunGard Data only any insurance proceeds actually received by the Indemnitee with respect to the Loss or Litigation Expense for which indemnification may be sought, net of retrospective premium adjustments and similar charges, and (b) reduced by any amounts actually recovered from any third parties, by way of indemnification or otherwise, with respect to the Loss or Litigation Expense for which indemnification may be sought, in each case net of expenses incurred by the Indemnitor in collecting such proceeds or amounts. In the event an insurance or other claim by an Indemnitee against a third party is pending at the time indemnification is sought from an Indemnitor, no reduction shall be made to the amount payable by the Indemnitor but, as and when any insurance or third-party proceeds are received by the Indemnitee, the indemnifiable Losses or Litigation Expenses shall be adjusted to reflect the receipt of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than proceeds and the Minimum Amount) in Indemnitee shall promptly refund to the Indemnitor any excess of the Thresholdindemnification payment theretofore made over the adjusted amount payable.
(c) The representations liability of an Indemnitor under this Article VIII shall be reduced by the net amount of any tax benefits actually realized by the Indemnitee or its shareholders to the extent the claim for which indemnification is sought gives rise to a deductible loss or expense. In the event tax benefits have not been actually realized (through a refund of or deduction or credit against taxes payable), or the net tax benefit cannot finally be determined, at the time indemnification is sought from an Indemnitor, no reduction shall be made to the amount payable by the Indemnitor but, as and warranties when the tax benefits are actually realized and the net amount thereof finally determined, the indemnifiable Litigation Expenses and Losses shall be adjusted to reflect the net tax benefits realized and the Indemnitee shall promptly refund to the Indemnitor any excess of the SunGard Entities, indemnification payment theretofore made over the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsadjusted amount payable.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 2 contracts
Sources: Contribution Agreement (Constellation Brands, Inc.), Joint Venture Agreement (Constellation Brands, Inc.)
Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Indemnifying Party shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein liable to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties Party for indemnification under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)9.02(a)(ii) or Section 10.1(b) (other than Section 10.1(b)(iii9.03(b)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 9.02(a)(ii) or Section 9.03(b) exceeds one-percent (1%) of the Purchase Price (the “Basket Amount”), in which event the Indemnifying Party shall only be required to pay or be indemnified liable for Losses in excess of the Basket Amount.
(eachb) No Indemnified Party shall be entitled to recover from the Indemnifying Party any Losses pursuant to either Section 9.02(a)(ii) or Section 9.03(b), in each case, for an aggregate amount in excess of twenty-five (25%) of the Purchase Price (the “Cap”).
(c) The aggregate amount of all Losses for which either (i) Seller, pursuant to Section 9.02(a), or (ii) Buyer, pursuant to Section 9.03, shall be liable shall, in each case, not exceed the Purchase Price;
(d) Notwithstanding the foregoing, the limitations set forth in Sections 9.04(a)–(c) shall not apply to Losses based upon, arising out of, with respect to or by reason of Fraud; and
(e) Losses for which any Indemnified Party would otherwise be entitled to indemnification under this Article IX shall be reduced by the amount of insurance proceeds actually received by such Indemnified Party in respect of any Losses incurred by such Indemnified Party (net of any fees, costs and expenses of collection or increased premiums, if applicable). In the event that any such insurance proceeds are actually received by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, an “appropriate refund shall be made promptly by the relevant Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) Parties to the Indemnifying Party in an amount not to exceed the lesser of (i) the amount by which (A) the amount received by the Indemnified Party, net of any fees, costs and expenses or increased premiums incurred by such Indemnified Party in collecting such amount, plus the payment received from the Indemnifying Party, exceeds (B) the total Losses suffered or incurred by the Indemnified Party with respect to the applicable claim for indemnification; (ii) the amount received by the Indemnified Party, net of any fees, costs and expenses or increased premiums incurred by such Indemnified Party in collecting such amount; and (iii) the amount paid by the Indemnifying Party pursuant to this Article IX. Notwithstanding the foregoing, nothing contained herein shall obligate an Indemnified Party to seek recovery from any then-existing insurance policies in respect of any Losses hereunder.
(f) No Indemnified Party shall be entitled to indemnification for any punitive, incidental, consequential, special, or indirect damages, or exemplary Losses except, in each case, to the extent such Losses are finally awarded in connection with a Third-Party Claim against the Indemnified Party.
(g) Each Indemnified Party shall use its commercially reasonable efforts to mitigate any Losses for which it is entitled to indemnification pursuant to this Article IX including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
(h) For purposes of this ARTICLE IX (including for purposes of determining the existence of any inaccuracy in, or breach of, any representation or warranty and for calculating the amount of any Loss with respect thereto), any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Body & Mind Inc.), Membership Interest Purchase Agreement (Body & Mind Inc.)
Certain Limitations. Notwithstanding anything to the contrary in this Agreement, the indemnification provided for in Section 9.2 and Section 9.3 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein If any claim for indemnification by either Party that is subject to indemnification by the contraryother Party under Section 9.2(a) or Section 9.3(a), SunGard Data as applicable, results in aggregate Losses that do not exceed $50,000, then such Losses shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel deemed Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties eligible for aggregate Datatel Losses in excess of an amount equal to $177,500,000indemnification under this Article IX.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data The Seller shall not be obligated liable to indemnify the Datatel Indemnified Parties Buyer Indemnitees for indemnification under this Agreement pursuant to Section 10.1(a)(i9.2(a) with until the aggregate amount of all Losses in respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars (indemnification under Section 9.2(a) exceeds $75,000) 1,500,000 (the “Minimum Threshold Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that once the aggregate amount of all such obligations Losses exceeds the Threshold Amount, then the Buyer shall have the right to indemnify recover all such Losses without regard to the Threshold Amount, subject to the other limitations on recovery and hold harmless recourse set forth in this Agreement. The aggregate amount of all Losses for which the Seller shall be liable pursuant to Section 9.2(a) shall not terminate exceed 10% of the Base Purchase Price (the “Cap”).
(c) The Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 9.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.3(a) exceeds the Threshold Amount; provided, however, that once the aggregate amount of all such Losses exceeds the Threshold Amount, then the Seller shall have the right to recover all such Losses without regard to the Threshold Amount, subject to the other limitations on recovery and recourse set forth in this Agreement. The aggregate amount of all Losses for which the Buyer shall be liable pursuant to Section 9.3(a) shall not exceed the Cap.
(d) Notwithstanding the foregoing, the limitations set forth in Section 9.4(a), Section 9.4(b) and Section 9.4(c) shall not apply to Losses based upon, arising out of, with respect to or by reason of any item as inaccuracy in or breach of any Fundamental Representation or Tax Representation.
(e) For purposes of this Article IX, the amount of any indemnifiable Losses in respect of (but not the inaccuracy in or breach of) any representation or warranty shall be determined without regard to which any materiality, Seller Material Adverse Effect, Buyer Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(f) Under no circumstances shall any Party be entitled to duplicate recovery under this Agreement with respect to (i) any indemnification claim pursuant to this Article IX, even though the SunGard facts or series of related facts giving rise to such claim may constitute a breach of more than one representation, warranty or covenant or agreement set forth herein, or in any of the agreements or instruments entered into in connection with the Closing, (ii) any adjustments to the Purchase Price pursuant to Section 2.4 or (iii) any reimbursement or other obligation hereunder.
(g) Notwithstanding any other provision in this Agreement, under no circumstances shall (i) the aggregate indemnification to be paid by a Party under this Article IX exceed the Base Purchase Price, except in the case of fraud or willful misconduct or (ii) any insurance proceeds or other payment or monetary recoupment received or that are actually realized or obtained by the Indemnified Party or Datatel Indemnified Party, (other than payments received from the Seller pursuant to this Article IX) as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration a result of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) events giving rise to the Indemnifying Partyclaim for indemnification be applied toward the Cap or other limitation on aggregate indemnification under this Agreement.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (American Midstream Partners, LP), Membership Interest Purchase Agreement (Green Plains Inc.)
Certain Limitations. (a) Notwithstanding anything contained herein Except with respect to the contraryIndemnifiable Losses resulting from Excluded Taxes or from any inaccuracy in or breach of a representation or warranty set forth in Section 3.17, SunGard Data no party shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses and hold harmless its respective Indemnitees under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(aSection 10.02(a)(i) (in the case of Seller, and other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant an inaccuracy in or breach of any Seller Specified Representation) or Section 10.02(b)(i) (in the case of Purchaser, and other than with respect to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses an inaccuracy in excess or breach of an amount equal to $177,500,000.
any Purchaser Specified Representation) (b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(ii) with respect to any individual Datatel Loss claim or series of related Datatel claims arising out of substantially similar facts and circumstances, unless such claim or series of claims involves Indemnifiable Losses in excess of less than seventy-five thousand dollars ($75,000) 100,000 (the “Minimum Threshold Amount”) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which the Indemnitor is responsible under clause (ii) below) and (ii) unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel all Indemnifiable Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)Indemnitees under Section 10.02(a)(i) or Section 10.1(b) (other than Section 10.1(b)(iiisuch Section 10.02(b)(i)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, exceeds $14,500,000 for all Indemnifiable Losses (the “Deductible”), at which point such Indemnitor shall be liable to its respective Indemnitees for the value of the Indemnitee’s claims under Section 10.02(a)(i) (other than with respect to a breach of any Seller Specified Representation) or Section 10.02(b)(i) (other than with respect to a breach of any Purchaser Specified Representation), as the case may be, that is in excess of the Deductible, subject to the limitations set forth in this Article X; provided, however, that any Indemnifiable Losses of the Purchaser Indemnified Persons resulting from or arising out of any inaccuracy in or breach of any representation or warranty set forth in Section 3.03 shall not be indemnified subject to the Deductible, and the Threshold Amount for such Indemnifiable Losses shall be $50,000; provided further that, for the avoidance of doubt, any such Indemnifiable Losses shall be subject to the Threshold Amount and the maximum aggregate liability set forth in the following sentence prior to the proviso set forth therein. The maximum aggregate liability of Seller, on the one hand, and Purchaser on the other hand, to their respective Indemnitees for any and all Indemnifiable Losses under Section 10.02(a)(i), in the case of Seller (eachother than with respect to a breach of any Seller Specified Representation), an “or Sections 10.02(b)(i), in the case of Purchaser (other than with respect to a breach of any Purchaser Specified Representation), shall be $174,000,000; provided, that the maximum aggregate liability of Seller to all Purchaser Indemnified Party”Persons for any or all Indemnifiable Losses under this Agreement shall not exceed the Purchase Price. The limitations in this Section 10.03(a) shall havenot apply to claims made under Section 10.02(a)(iii), before Section 10.02(b)(iii) or Section 10.02(b)(iv).
(b) Each Indemnitee shall use commercially reasonable efforts to mitigate all Indemnifiable Losses for which indemnification may be sought hereunder; provided that the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis costs and expenses of such claimmitigation shall constitute Indemnifiable Losses hereunder.
(c) Notwithstanding anything to the Indemnifying Partycontrary herein, any Indemnifiable Losses resulting from or arising out of any breach of any representation or warranty of Seller made in this Agreement in respect of Taxes, including under Section 3.17, shall be limited to Taxes attributable to Pre-Closing Periods.
Appears in 2 contracts
Sources: Master Transaction Agreement, Master Transaction Agreement (Aetna Inc /Pa/)
Certain Limitations. (a) Notwithstanding anything contained herein the other provisions of this Article VII, in respect of any indemnification by Seller or Purchaser, pursuant to Section 7.1 or Section 7.2, respectively, (i) there will be no obligation to indemnify for any individual item where the contraryLosses relating thereto is less than [***] of the Purchase Price (the “De Minimis Amount”) (provided, SunGard Data that such Losses shall be aggregated for purposes of this clause (i) if they arise out of the same matter, fact, circumstance or event, or a series of substantially related matters, facts, circumstances or events) and, if such Losses do not exceed the De Minimis Amount, then such Losses shall not be obligated applied to indemnify Datatel Indemnified Parties or considered for purposes of calculating the aggregate Datatel amount of Losses under this Agreement and the Asset Purchase Agreement pursuant following clause (ii); (ii) where the Losses arising from such individual claim is equal to Section 10.1(a) (other or greater than Section 10.1(a)(v)) and Section 10.1(a) the De Minimis Amount, until the aggregate amount of all such Losses incurred by the Indemnified Party exceeds [***] of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(iPrice (the “Deductible”), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel at which time all such Losses in excess of an amount equal the Deductible will be subject to $177,500,000indemnification hereunder; and (iii) Seller’s or Purchaser’s aggregate Liability for indemnification pursuant to this Article VII, unless arising in connection with Fraud of Seller or the Divesting Entity or Third Party Claims, will not exceed [***] of the Purchase Price received by Seller.
(b) Notwithstanding If, prior to the Closing, Purchaser has had knowledge of any breach by Seller of any representation, warranty, covenant or agreement contained in this Agreement and Purchaser proceeds with the Closing, Purchaser shall be deemed to have waived such breach pursuant to this Article VII, to sue for damages or assert any other right or remedy arising from any matters relating to such breach, notwithstanding anything to the contrary contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement or any certificate delivered pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Thresholdhereto.
(c) The representations Notwithstanding anything to the contrary contained herein (unless actually awarded and warranties paid on account of the SunGard Entitiesa Third Party Claim ), the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement no Party shall not survive the Closing; provided that be liable for any (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitelyspecial, punitive, exemplary, incidental, consequential or indirect damages, (ii) solely for purposes lost profits or lost business, loss of Section 7.4(d)(i)(D)enterprise value, the representations and warranties set forth diminution in Section 5.9 shall survive until sixty (60) days after the expiration value of the applicable statute any business, damage to reputation or loss of limitations, and goodwill or (iii) the representations damages calculated based on a multiple of profits, revenue or any other financial metric, in each case, whether based on contract, tort, strict liability, other Law or otherwise, and warranties set forth in Section 5.4(c)whether or not arising from any other Party’s sole, Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date joint or dates explicitly specified therein orconcurrent negligence, if not so specified, until performed in accordance with their termsstrict liability or other fault.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Upstream Bio, Inc.), Asset Purchase Agreement (Upstream Bio, Inc.)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated liable to indemnify Datatel Indemnified Parties any Buyer Indemnitee for indemnification under Section 8.02(a) for any claim where the aggregate Datatel Losses related to such claim are less than $200,000 unless the claim is part of a series of claims arising from the same facts and circumstances where the aggregate Losses relating to such series of claims are greater than $200,000. Seller shall be liable to Buyer Indemnitees for indemnification under Section 8.02(a) only to the extent that Buyer Indemnitees’ Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i8.02(a), SunGard Data in the aggregate, exceed $2,000,000 (the “Basket”), in which event Seller shall not be obligated required to indemnify pay or be liable for all such Losses from the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000first dollar.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyer shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect liable to any individual Datatel Loss or Seller Indemnitees for indemnification under Section 8.03(a) for any claim where the aggregate Losses related to such claim are less than $200,000 unless the claim is part of a series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (claims arising from the “Minimum Amount”) same facts and unless and until circumstances where the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject relating to such series of claims are greater than $200,000. Buyer shall be liable to Seller Indemnitees for indemnification collectively exceed two million dollars ($2,000,000under Section 8.03(a) (only to the “Threshold”extent that Seller Indemnitees’ Losses under Section 8.03(a), whereupon such indemnification in the aggregate, exceed the Basket, in which event Buyer shall be made by SunGard Data only with respect required to pay or be liable for all such Losses from the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Thresholdfirst dollar.
(c) The representations Notwithstanding anything to the contrary in this Agreement, other than Section 8.04(d) and warranties of the SunGard Entities, the Company and the Datatel Entities contained except as provided in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that Section 10.12 (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(DLiquidated Damages), the representations and warranties set forth in maximum amount of indemnifiable Losses which may be recovered by Seller or by Buyer pursuant to this Section 5.9 8 shall survive until sixty (60) days after the expiration be an amount equal to 10% of the applicable statute of limitations, and Final Purchase Price (iii) the representations and warranties set forth in Section 5.4(c“Cap”), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to provisions of Section 10.1(a) (other than 8.04(a), Section 10.1(a)(v)8.04(b) or Section 10.1(b) (other than Section 10.1(b)(iii)8.04(c) shall terminate when the applicable not apply to Losses based upon any inaccuracy in or breach of any representation, warranty or covenant terminates pursuant to in Section 10.2(c); provided2.01, howeverSection 2.03, that such obligations to indemnify Section 2.21, Section 3.01, Section 3.02, Section 4.16 or Section 7 or indemnification under Section 8.02(c) and hold harmless shall not terminate with respect apply to Losses based upon claims of fraud.
(e) For purposes of this Section 8, any inaccuracy in or breach of any representation or warranty shall be determined (i) without regard to any item as to which the SunGard Indemnified Party materiality, Material Adverse Effect, or Datatel Indemnified PartyKnowledge contained in such representation or warranty and (ii) assuming that each dollar amount set forth in Sections 2.07, as the case may be2.11(g), to be indemnified (each, an “Indemnified Party”2.16(a) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claimand 2.20(c) to the Indemnifying Partywas $0.00.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Lithia Motors Inc), Stock Purchase Agreement (Lithia Motors Inc)
Certain Limitations. The party making a claim under this Article VIII is referred to as (the “Indemnified Party”), and the party against whom such claims are asserted under this Article VIII is referred to as (the “Indemnifying Party”). The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Indemnifying Party shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein liable to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties Party for indemnification under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)8.02(a) or Section 10.1(b) (other than Section 10.1(b)(iii8.03(a)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) or Section 8.03(a) exceeds the Threshold Amount (the “Deductible”), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible. With respect to any claim as to which the Indemnified Party may be entitled to indemnification under Section 8.02(a) or Section 8.03(a), as the case may be, the Indemnifying Party shall not be liable for any individual or series of related Losses which do not exceed the Minimum Claim Amount (which Losses shall not be counted toward the Deductible).
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 8.02(a) or Section 8.03(a), as the case may be, shall not exceed fifteen percent (15%) of the Purchase Price.
(c) Payments by an Indemnifying Party pursuant to Section 8.02 or Section 8.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be indemnified received by the Indemnified Party in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement.
(each, d) Payments by an “Indemnifying Party pursuant to Section 8.02 or Section 8.03 in respect of any Loss shall be reduced by an amount equal to any Tax benefit realized or reasonably expected to be realized as a result of such Loss by the Indemnified Party”.
(e) In no event shall haveany Indemnifying Party be liable to any Indemnified Party for any punitive, before incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the expiration breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(f) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
(g) Seller shall not be liable under this Article VIII for any Losses based upon or arising out of any inaccuracy in or breach of any of the applicable survival period, previously made a claim by delivering a written notice (stating representations or warranties of Seller contained in reasonable detail the basis this Agreement if Buyer had knowledge of such claim) inaccuracy or breach prior to the Indemnifying PartyClosing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (ARC Group Worldwide, Inc.), Asset Purchase Agreement
Certain Limitations. The indemnification afforded by this ARTICLE X shall be subject to the following limitations:
(a) Notwithstanding anything contained herein With respect to indemnification by the Company pursuant to Section 10.1(a), the Company’s maximum liability for any Loss suffered by an Investor Indemnified Party (other than any Loss resulting from a Third Party Claim) shall not exceed an amount (the “Company Indemnification Cap”) equal to (i) the Hard Cap and the amount of all of the other Obligations owed by the Company Parties to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses Investor under this Agreement and the Asset Purchase Agreement other Transaction Documents (other than the indemnification amounts payable under Section 10.1(a)) as of the date of determination, minus (ii) the aggregate amount of all of the payments collected or received by the Investor (and any direct or indirect transferee of the Investor to whom any interest in the Revenue Interests is transferred) hereunder as of such date of determination (other than (A) any payments collected or received as a reimbursement of expenses incurred by any Investor Indemnified Party (including attorney’s fees) and (B) any indemnification payments collected or received pursuant to Section Section 10.1(a)), minus (iii) the aggregate amount collected or received by the Investor (and any direct or indirect transferee of the Investor to whom any interest in the Revenue Interests is transferred) pursuant to the exercise of its rights under Section 10.1(a) (other than Section 10.1(a)(vwithout duplication of any amounts collected or received pursuant to clause (ii)) and Section 10.1(a) prior to such date of determination to the Asset Purchase Agreement extent such amount was not collected or received in excess of an amount equal to $1,775,000,000; provided that connection with respect to Datatel Losses pursuant to Section 10.1(a)(i)a Third Party Claim. Notwithstanding the foregoing, SunGard Data the Company Indemnification Cap shall not be obligated apply to indemnify the Datatel any Loss suffered by any Investor Indemnified Parties for aggregate Datatel Losses Party in excess of an amount equal to $177,500,000connection with a Third Party Claim.
(b) Notwithstanding anything contained herein With respect to indemnification by the Investor pursuant to Section 10.2, the Investor’s maximum liability shall not exceed an amount equal to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(iexcess (if any) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes aggregate amount of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration all of the applicable statute payments collected or received by the Investor from the Company prior to the date of limitations, and determination (iiiexcluding any amounts collected or received as a reimbursement of expenses incurred by the Investor or any indemnification amounts collected or received in connection with a Third Party Claim) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and over (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsInvestment Amount.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 2 contracts
Sources: Omnibus Amendment (Allurion Technologies, Inc.), Revenue Interest Financing Agreement (Allurion Technologies Holdings, Inc.)
Certain Limitations. (ai) Notwithstanding anything contained herein to the contrary, SunGard Data Each Shareholder shall not be obligated have no obligation to indemnify Datatel Indemnified Parties any Buyer Indemnitee for aggregate Datatel Losses under this Agreement and any item of Loss unless all such individual items exceed $200,000 in the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data aggregate. Cyrk shall not be obligated have no obligation to indemnify any Seller Indemnitee for any item of Loss unless all such individual items exceed $200,000 in the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000aggregate.
(bii) Notwithstanding anything contained herein to the contrary, SunGard Data No Loss shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) asserted by a Seller Indemnitee or Buyer Indemnitee with respect to any individual Datatel Loss matter (A) which is covered by insurance, to the extent proceeds of such insurance are received (net of any additional costs incurred by reason of such recovery) or series (B) for which any Tax benefit is received by the Seller Indemnitee or Buyer Indemnitee, as applicable, to the extent of related Datatel Losses of less such tax benefit.
(iii) If the Closing shall have occurred, notwithstanding anything to the contrary contained herein (other than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until as provided in Section 6.10(d)), after such time that the aggregate Datatel Losses of all amounts paid by any Shareholder in respect of any Loss (excluding individual Datatel Losses or related Datatel Losses less than a portion thereof) equals $1,125,000 plus five percent (5%) of all amounts paid to any Shareholder pursuant to Section 1.05, such Shareholder shall have no further obligation to indemnify or hold harmless any Buyer Indemnitee for any Loss (or portion thereof) and, after such time that the Minimum Amountaggregate of all amounts paid by Cyrk in respect of any Loss (or a portion thereof) subject equals $2,250,000 plus five percent (5%) of all amounts paid to such indemnification collectively exceed two million dollars any Shareholder pursuant to Section 1.05, Cyrk shall have no further obligation to indemnify or hold harmless any Seller Indemnitee for any Loss ($2,000,000) (or portion thereof); PROVIDED, HOWEVER, that the “Threshold”), whereupon such foregoing limitations on indemnification shall not be made applicable to any Loss arising out of a breach of Section 3.20 or Section 6.13 hereof.
(iv) If the Closing shall have occurred, each Shareholder's obligation to indemnify a Buyer Indemnitee pursuant to this Section 6.10 shall be payable only by SunGard Data only and to the extent of the shares of Cyrk Common Stock received by such Shareholder pursuant to this Agreement, and in no event shall such obligation be payable in cash or any other form of consideration (other than with respect to the amount breaches of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdSections 3.01, 3.02, 3.03, 3.20 and 6.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 2 contracts
Sources: Merger Agreement (Brown Allan), Merger Agreement (Brown Allan)
Certain Limitations. The indemnification provided for in Article VII, Section 9.02, Section 9.03 and Section 9.04 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Warrantors shall not be obligated liable to indemnify Datatel Indemnified Parties the Beneficiary Indemnitees for aggregate Datatel Losses indemnification under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a9.03(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 10.1(a)(v)) 4.01 and Section 10.1(a4.03 (the “Beneficiary Basket Exclusions”), or under Section 9.03(b) with respect to covenants to be performed prior to the Closing or Article VII, until the aggregate amount of all Losses in respect of indemnification under such sections (other than those based upon, arising out of, with respect to or by reason of the Beneficiary Basket Exclusions) exceeds €150,000 (the “Basket”), in which event the Warrantors shall be required to pay or be liable only for those Losses exceeding €150,000. The maximum aggregate indemnification obligation of the Warrantors under Article IX or Article VII shall be limited to thirty percent (30%) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that Contribution Amount other than with respect to Datatel claims for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty contained in the Beneficiary Basket Exclusions. Notwithstanding the foregoing, Beneficiary shall not have the right to recover Losses pursuant under this Article IX or Article VII relating to Section 10.1(a)(iany individual claim or series of related claims based on a similar set of operative facts, and such Losses shall not apply to the Basket, unless such claim or series of related claims is greater than €15,000 (the “De Minimis Amount”), SunGard Data in which case the Beneficiary shall not be obligated entitled to indemnify recover for all such Losses (or all such Losses shall be applied against the Datatel Indemnified Parties for aggregate Datatel Losses Basket, as applicable) in excess connection with such claim or series of an amount equal to $177,500,000related claims including the De Minimis Amount.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data The Beneficiary shall not be obligated liable to indemnify the Datatel Indemnified Parties Contributor Indemnitees for indemnification under this Agreement pursuant Section 9.04(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Sections 5.01 and 5.04 (the “Contributor Basket Exclusions”), or under Section 10.1(a)(i9.04(b) with respect to covenants to be performed prior to the Closing, until the aggregate amount of all Losses in respect of indemnification under such sections (other than those based upon, arising out of, with respect to or by reason of the Contributor Basket Exclusions) exceeds €150,000 (the “Basket”), in which event the Beneficiary shall be required to pay or be liable only for those Losses exceeding €150,000. The maximum aggregate indemnification obligation of the Beneficiary under Article IX shall be limited to thirty percent (30%) of the Contribution Amount other than with respect to claims for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty contained in the Contributor Basket Exclusions. Notwithstanding the foregoing, Contributors shall not have the right to recover Losses under this Article IX relating to any individual Datatel Loss claim or series of related Datatel claims based on a similar set of operative facts, and such Losses shall not apply to the Basket, unless such claim or series of less related claims is greater than seventy-five thousand dollars ($75,000) (the “Minimum De Minimis Amount”) and unless and until , in which case the aggregate Datatel Contributors shall be entitled to recover for all such Losses (excluding individual Datatel or all such Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to applied against the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum AmountBasket, as applicable) in excess connection with such claim or series of related claims including the ThresholdDe Minimis Amount.
(c) The representations and warranties of Losses otherwise subject to indemnification hereunder shall be reduced by the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein oramount, if not so specifiedany, until performed in accordance of any insurance proceeds, Tax benefits or savings, or other amounts received or recoverable by the Indemnified Party from any third party with their terms.
(d) The obligations respect thereto. All Indemnified Parties shall use good faith reasonable commercial efforts to indemnify mitigate any Losses potentially subject to indemnification hereunder and hold harmless a Party pursuant to Section 10.1(a) (recover any such Losses from any available insurance carrier or other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) third party potentially liable therefor. No party shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate have any indemnification obligation hereunder with respect to any item as Loss to which the SunGard extent arising from the enactment or amendment of any Laws entering in force after the Closing. Neither the Contributors nor the Warrantors shall have any indemnification obligation hereunder with respect to any Loss arising from any change made by Beneficiary or the Companies to the accounting methods or practices implemented after the Closing or any other actions taken or omitted to be taken by Companies or Beneficiary following the Closing, or reserved against or accrued or provided for on the Financial Statements or the Closing Working Capital Statement. If any amount paid in connection with or account of a Loss by an Indemnifying Party to another is subsequently recovered, totally or partially, from a Person or a Governmental Authority, then the Indemnified Party or Datatel Indemnified Party, as shall promptly pay over the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) amount so recovered to the Indemnifying Party, up to the amount previously indemnified. An Indemnifying Party shall have a reasonable opportunity to cure any matter giving rise to a potential claim for indemnification hereunder. An Indemnifying Party shall be subrogated to all rights of any Indemnified Party with respect to any Losses to which such indemnification relates to the extent of any payment made in connection therewith. In any case, any given Loss will be indemnified only once and, as a consequence, shall not lead to several indemnifications by the Indemnifying Party to the Indemnified Party and/or any of its Affiliates.
Appears in 2 contracts
Sources: Stock Contribution Agreement, Stock Contribution Agreement (Apricus Biosciences, Inc.)
Certain Limitations. (ai) Notwithstanding anything contained herein to the contrarycontrary contained in this Agreement, SunGard Data (x) for any claim for indemnity made pursuant to Section 8.2(b) (an “Environmental Standalone Claim”), or a claim based on a failure of any representation or warranty made by Sellers in Section 3.11 (collectively an “Environmental Representations Claim” an Environmental Standalone Claim and an Environmental Representations Claim shall hereinafter be collectively referred to as “Environmental Indemnity Claims”), Sellers shall not be obligated to indemnify Datatel Indemnified Parties liable for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and such claims unless and until the aggregate Datatel amount of all indemnifiable Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject relating to such indemnification collectively exceed two million dollars claims equals or exceeds Four-Hundred Fifty Thousand Dollars ($2,000,000) (the “Threshold”450,000), whereupon such indemnification in which case Sellers shall be made by SunGard Data liable only with respect to for the amount of such Datatel the Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of such amount; (y) from and after the ThresholdClosing, the maximum aggregated amount of indemnifiable Losses which may be recovered under Section 8.2(b) shall be Thirteen Million Five Hundred Thousand Dollars ($13,500,000); and (z) Sellers shall not be liable for any Environmental Standalone Claim or Environmental Representation Claim unless such claim is made hereunder prior to September 25, 2028.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with With respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Partyand all Environmental Indemnity Claims, Purchaser and Sellers, as the case may be, shall act only in a “Commercially Reasonable Manner” which shall mean the most cost-effective and commercially reasonable method for investigation, remediation, removal, corrective action, containment, monitoring and/or other response action permitted by applicable Environmental Laws, determined from the perspective of a reasonable business person acting (without regard to the availability of indemnification hereunder) to achieve compliance with Environmental Laws in effect as of the Closing (it being understood that Commercially Reasonable Manner shall include the use of risk-based remedies, institutional or engineering controls, or deed restrictions, based on the use of the property at Closing).
(iii) Sellers shall have no obligations for any Environmental Indemnity Claim to the extent Losses thereunder result from or are the consequence of any action (including disclosure, report or other communication from the Purchaser and its Affiliates (or their agents) to any Governmental Authority or other third party or any Phase II or other intrusive investigations or sampling, testing or monitoring of the soil, surface water or groundwater performed by Purchaser or its Affiliates (or their agents)) that is not (A) required by an Environmental Law; or (B) necessary to address a condition first discovered as a result of construction activities at, on or beneath a Leased Real property or Real Property.
(iv) Sellers shall have no obligation for any Environmental Indemnity Claim to the extent Losses result, in whole or in part, from any change in use of any Leased Real Property, any Real Property or the property subject to the Sublease Agreement from its current use to any non-industrial use after the Closing Date.
(v) From and after the Closing Date, with respect to the Business, any Leased Real Property or any Real Property, Purchaser shall, and will cause each of its Affiliates and Subsidiaries to, comply with all applicable Environmental Laws in all material respects.
(vi) The Purchaser Indemnitees shall be permitted to assign all of their rights to bring an Environmental Indemnity Claim; provided that no more than one such assignment may be made by all the Purchaser Indemnitees, taken as a whole, and; provided, further, that any such assignment, if made, shall be effective if, and only if, the assignee agrees in writing to be indemnified (each, an “Indemnified Party”) shall have, before the expiration bound to all of the limitations applicable survival period, previously made a claim by delivering a written notice (stating to Environmental Indemnity Claims set forth in reasonable detail the basis of such claim) to the Indemnifying Partythis ARTICLE VIII.
Appears in 2 contracts
Sources: Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.), Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated to indemnify Datatel Purchaser Indemnified Parties for aggregate Datatel Purchaser Losses (i) under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a8.1(a)(i) in excess of $5,500,000 (the “Cap”) or (ii) under this Agreement (other than Section 10.1(a)(vpursuant to Sections 5.8 or 8.1(a)(iii)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect the Purchase Price. Notwithstanding anything contained herein to Datatel Losses pursuant to Section 10.1(a)(i)the contrary, SunGard Data Purchaser shall not be obligated to indemnify the Datatel Seller Indemnified Parties for aggregate Datatel Seller Losses (i) under this Agreement pursuant to Section 8.1(b)(i) in excess of the Cap; provided, however, that the limitations set forth in clause (i) shall not apply to any breaches of any Fundamental Representation or (ii) under this Agreement (other than pursuant to Sections 5.8 or 8.1(b)(iii)) in excess of an amount equal to $177,500,000the Purchase Price.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated to indemnify the Datatel Purchaser Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and 8.1(a)(i), unless and until the aggregate Datatel Purchaser Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) 550,000 (the “ThresholdDeductible”), whereupon such indemnification shall be made by SunGard Data Seller only with respect to the amount of such Datatel Purchaser Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdDeductible; provided, however, that the Deductible shall not apply to any breaches of any Fundamental Representation. Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to indemnify Seller Indemnified Parties under this Agreement pursuant to Section 8.1(b)(i), unless and until the aggregate Seller Losses subject to such indemnification collectively exceed the Deductible, whereupon such indemnification shall be made by Purchaser only with respect to the amount of such Seller Losses in excess of the Deductible; provided, however, that the Deductible shall not apply to any breaches of any Fundamental Representations.
(c) The representations and warranties of the SunGard Entities, the Company Seller and the Datatel Entities Purchaser contained in Articles Article III and Article IV, V and VI respectively, of this Agreement shall not survive the ClosingClosing and terminate on the date that is 12 months following the Closing Date; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)Sections 8.1(a)(i) or Section 10.1(b) (other than Section 10.1(b)(iii)8.1(b)(i) shall terminate when the applicable representation, representation or warranty or covenant terminates pursuant to Section 10.2(c8.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item claims as to which the SunGard Seller Indemnified Party or Datatel Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim, to the extent known by the Indemnified Party) to the indemnifying Party hereunder (the “Indemnifying Party”).
(e) Each Person entitled to indemnification hereunder shall, to the extent as would be required under applicable Law, take all reasonable steps to mitigate all Losses after becoming aware of any event that could reasonably be expected to give rise to any Losses which are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Extreme Networks Inc)
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated the maximum aggregate liability of Seller and the Other Sellers to indemnify Datatel all Purchaser Indemnified Parties taken together for aggregate Datatel all Purchaser Losses under this Agreement and Section 9.1(a)(i) by Purchaser Indemnified Parties shall be limited to a maximum of 10% of the Asset Purchase Agreement Price, as adjusted pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of this Agreement. Notwithstanding the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that foregoing, with respect to Datatel Losses (i) the breach or alleged breach of the representations and warranties set forth in Sections 4.1 (Corporate Existence); 4.2 (Corporate Authority), and 4.4(a) (Properties and Assets) and (ii) fraud or intentional or criminal misconduct or gross negligence by Seller or any Other Seller, in each case, such indemnification limit will not apply, but such indemnification shall be limited to 100% of the Purchase Price, as adjusted pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000this Agreement.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated the maximum aggregate liability of Purchaser to indemnify the Datatel all Seller Indemnified Parties taken together for all Seller Losses under this Agreement Section 9.1(b)(i) by Seller Indemnified Parties shall be limited to a maximum of 10% of the Purchase Price, as adjusted pursuant to Section 10.1(a)(i) this Agreement. Notwithstanding the foregoing, with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and breach or alleged breach of the representations and warranties set forth in Sections 5.1 (Corporate Existence) and 6.1 shall survive indefinitely, 5.2 (Corporate Authority) and (ii) solely for purposes fraud or intentional or criminal misconduct or gross negligence by Purchaser, in each case, such indemnification limit will not apply, but such indemnification shall be limited to 100% of the Purchase Price, as adjusted pursuant to this Agreement.
(c) Notwithstanding anything contained herein to the contrary, Seller and the Other Sellers shall not be obligated to make any indemnification payment under Section 7.4(d)(i)(D)9.1(a)(i) unless and until the aggregate Purchaser Losses sustained by the Purchaser Indemnified Parties collectively exceed 0.5% of the Purchase Price as adjusted pursuant to this Agreement (the “Threshold”) and then any indemnification with respect to such Purchaser Losses shall be made by Seller and the Other Sellers only to the extent of such excess over such Threshold. Notwithstanding the foregoing, with respect to (i) the breach or alleged breach of the representations and warranties set forth in Sections 4.1 (Corporate Existence); 4.2 (Corporate Authority) and 4.4(a) (Properties and Assets) and (ii) fraud or willful or criminal misconduct or gross negligence by Seller or any Other Seller, such Threshold will not apply.
(d) Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to make any indemnification payment under Section 5.9 shall survive 9.1(b)(i) unless and until sixty (60) days after the expiration of aggregate Seller Losses sustained by Seller Indemnified Parties collectively exceed the applicable statute of limitationsThreshold, and then any indemnification with respect to such Seller Losses shall be made by Purchaser only to the extent of such excess over such Threshold. Notwithstanding the foregoing, with respect to (iiii) the breach or alleged breach of the representations and warranties set forth in Sections 5.1 (Corporate Existence) and 5.2 (Corporate Authority) and (ii) fraud or willful or criminal misconduct or gross negligence by Seller or any Other Seller, such Threshold will not apply.
(e) Notwithstanding anything contained herein to the contrary, for purposes of Section 5.4(c9.1(a)(i), Seller shall not be obligated to make any indemnification payment with respect to any individual claim for Purchaser Losses thereunder, when taken together with all other related claims for Purchaser Losses as a result of such breach, is less than $75,000 (the “Minimum Claim Amount”).
(f) Notwithstanding anything contained herein to the contrary, for purposes of Section 5.20 9.1(b)(i), Purchaser shall not be obligated to make any indemnification payment with respect to any individual claim for Seller Losses thereunder, when taken together with all other related claims for Seller Losses as a result of such breach, is less than the Minimum Claim Amount.
(g) The representations and Section 5.21 warranties of Seller and Purchaser contained in Article IV and Article V, respectively, of this Agreement shall survive the Closing until the one year 18 month anniversary of the ClosingClosing Date; provided, however, the representations and warranties contained in Sections 4.1 (Corporate Existence); 4.2 (Corporate Authority), 4.4(a) (Properties and Assets), 5.1 (Corporate Existence) and 5.2 (Corporate Authority) will survive indefinitely. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsindefinitely.
(dh) The obligations to indemnify and hold harmless a Party party hereto pursuant to Section 10.1(a) (other than Section 10.1(a)(v)Sections 9.1(a)(i) or Section 10.1(b) (other than Section 10.1(b)(iii)9.1(b)(i) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c9.2(g); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, Person to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying indemnifying Person and such claim may be pursued and shall survive the expiration of the survival period until finally resolved.
(i) Notwithstanding anything herein to the contrary, a Purchaser Indemnified Party’s right to indemnification hereunder will not be affected by any investigation, notice or knowledge acquired by Purchaser, its counsel or its other representatives at any time, whether before or after the date of this Agreement, with respect to the accuracy or inaccuracy of or compliance or noncompliance with any representation, warranty, covenant or other obligation of Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Idearc Inc.), Asset Purchase Agreement (Infospace Inc)
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data Seller Parent, Seller and Other Sellers shall not be obligated to indemnify Datatel Purchaser Indemnified Parties for aggregate Datatel Purchaser Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a9.1(a)(i) in excess of $24,000,000; provided, however, that such limitation shall not apply with respect to a breach of a representation or warranty made by Seller (other than its Subsidiaries or the Other Sellers) in Section 10.1(a)(v4.1, 4.2(a), 4.3, 4.5, 4.9 or 4.10. In addition, Seller Parent, Seller and the Other Sellers shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses under this Agreement (including pursuant to Section 9.1(a)(ii), 9.1(a)(iii) or 6.13(e)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000Purchase Price.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Seller Parent, Seller and the Other Sellers shall not be obligated to indemnify the Datatel Purchaser Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i9.1(a)(i), (x) with respect to any individual Datatel Purchaser Loss or series of related Datatel Purchaser Losses of less than seventy-five fifty thousand dollars ($75,00050,000) (the “Minimum Amount”) and (y) unless and until the aggregate Datatel Purchaser Losses (excluding individual Datatel Purchaser Losses or related Datatel Purchaser Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars one percent ($2,000,0001.0%) of the Purchase Price (the “Threshold”), whereupon such indemnification shall be made by SunGard Data Seller only with respect to the amount of such Datatel Purchaser Losses (excluding individual Datatel Purchaser Losses or related Datatel Purchaser Losses less than the Minimum Amount) in excess of the Threshold; provided, however, that the Threshold shall not apply to any breach of a representation or warranty made by Seller in Sections 4.1, 4.2(a), 4.3, 4.5, 4.9 or 4.10.
(c) The representations and warranties of the SunGard Entities, the Company Seller Parties and the Datatel Entities Purchaser contained in Articles IVArticle IV and Article V, V and VI respectively, of this Agreement shall not survive the ClosingClosing until September 15, 2007; provided that (ithe representations and warranties set forth in Sections 4.1, 4.2(a), 4.3, 4.5, 4.9, 5.1, 5.2(a) the Fundamental Representations and 5.5 shall survive indefinitely and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 4.10 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance the expiration of the applicable statute of limitations with their termsrespect to the matters contained therein.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(vSections 6.14(e), 9.1(a)(i), 9.1(a)(ii), 9.1(b)(i) or Section 10.1(b) (other than Section 10.1(b)(iii)9.1(b)(ii) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c9.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Seller Indemnified Party or Datatel Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Avago Technologies LTD), Purchase and Sale Agreement (Marvell Technology Group LTD)
Certain Limitations. (a) Notwithstanding anything contained herein Except as provided in Section 8.03(b), no claim for indemnification may be made under Section 8.02(b):
(i) until the cumulative total of all Damages claimed by any Parent Entity under Section 8.02(b) exceeds $50,000 (the “Deductible”), in which case such Parent Entity shall be entitled to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement recover only Damages in excess of the Deductible; or
(ii) after the cumulative total of all Damages collected by the Parent Entities under Section 8.02(b) equals an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i15% of the Company Merger Consideration (the “Cap”), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contraryforegoing, SunGard Data the terms, conditions and limitations of Section 8.03(a) shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect apply to any individual Datatel Loss claim: (i) based on willful breach, intentional misrepresentation, or series fraud, or (ii) for indemnification as it relates to a breach of related Datatel Losses any Seller Fundamental Representations. Parent, on behalf of less than seventy-five thousand dollars ($75,000) (itself and the “Minimum Amount”) Parent Entities, hereby agrees not to seek from the Indemnifying Holders, and unless and until none of the Parent Entities shall be entitled to recover from the Indemnifying Holders, any Damages or other amounts, at any time in excess of the amount of such Cap. Except for claims based on a party’s willful breach, intentional misrepresentation or fraud, the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than liability of the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only Indemnifying Holders for any Damages with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than matters set forth in this Article VIII will not exceed the Minimum Amount) in excess value of the ThresholdCompany Merger Consideration. Other than as set forth above, In no event shall any Indemnifying Holders have any obligation to personally indemnify or hold the Parent Entities harmless from or against any Damages (nor any obligation to return any Merger Consideration already received by such Indemnifying Holder for any reason other than as set forth in Section 9.14(c)).
(c) The representations All indemnification payments payable hereunder shall be reduced by the amount of insurance proceeds and warranties any indemnity, contribution, or other similar payment (after deducting related costs and expenses, including any deductible amount and any resultant increase in insurance premiums) actually received by a Parent Entity as a result of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely Damages for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termswhich such Parent Entity is seeking indemnification.
(d) The obligations In the event of any matter giving rise to indemnify and hold harmless a Party an indemnity obligation of the Indemnifying Holders pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when 8.02, the applicable representationParent Entity will take, warranty or covenant terminates pursuant cooperate with the Indemnifying Holders, if so requested, in order to Section 10.2(c); providedtake, however, that such obligations all reasonable measures to indemnify and hold harmless shall not terminate with respect to any item as to which mitigate the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration consequences of the matter (including taking steps to prevent any contingent Liability from becoming an actual Liability) as required by applicable survival periodLaw.
(e) To the extent required by applicable Law, previously made a claim by delivering a written notice (stating in the Parent Entities shall, and shall take, and shall cause others under their respective control to take, all reasonable detail the basis efforts to, mitigate Damages upon becoming aware of such claim) any event or circumstance that could reasonably be expected to the Indemnifying Partygive rise to Damages.
Appears in 2 contracts
Sources: Merger Agreement (Panbela Therapeutics, Inc.), Merger Agreement (Panbela Therapeutics, Inc.)
Certain Limitations. (a) Notwithstanding anything contained herein to After the contraryClosing, SunGard Data Seller shall not be obligated required to indemnify Datatel Indemnified Parties the Buyer Indemnitees (i) for aggregate Datatel Losses under this Agreement and Section 9.2(a) until the Asset Purchase Agreement pursuant to Section 10.1(aaggregate amount of all such Losses exceeds $1,000,000 (the “Basket”), in which event Seller shall be responsible for the entire amount of such Losses, or (ii) (other than Section 10.1(a)(v)) and Section 10.1(a) of for Losses in the Asset Purchase Agreement aggregate in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000Escrow Funds.
(b) Notwithstanding anything contained herein Any Buyer Indemnitee shall only be indemnified to the contraryextent of funds available in the Escrow Funds, SunGard Data it being understood that such Escrow Funds shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) sole and exclusive source of recovery and remedy of any Buyer Indemnitee with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such claim for indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Thresholdunder Section 9.2.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement Buyers shall not survive be required to indemnify the Closing; provided that Seller Indemnitees (i) for Losses under Section 9.3(a) until the Fundamental Representations and aggregate amount of all such Losses exceeds the representations and warranties set forth Basket, in Sections 5.1 and 6.1 which event Buyers shall survive indefinitelybe responsible for the entire amount of such Losses, or (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained Losses in the Surviving Pre-Closing Covenants shall survive until the one year anniversary aggregate in excess of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms$10,000,000.
(d) For purposes of this Article IX, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any knowledge, materiality, Material Adverse Effect or similar qualification contained in or otherwise applicable to such representation or warranty.
(e) The obligations representations, warranties and covenants of Seller and Buyers’ rights to indemnify and hold harmless a Party pursuant to Section 10.1(a) indemnification with respect thereto shall not be affected or deemed waived by reason of any investigation made by or on behalf of either Buyer (other than Section 10.1(a)(v)including by any of its advisors, consultants or Representatives) or by reason of the fact that either Buyer or any of such advisors, consultants or Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of Buyers’ waiver of any condition set forth in Article VI.
(f) Except as provided in Section 10.1(b) (other than Section 10.1(b)(iii)) 10.9 and Article VIII, the indemnity provided for in this Article IX shall terminate when be the applicable representation, warranty sole and exclusive remedy of the Buyer Indemnitees or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified PartySeller Indemnitees, as the case may be, after the Closing for any inaccuracy of any representation or warranty of Seller or Buyers, as applicable, in this Agreement or any other breach hereof. Seller hereby waives and acknowledges and agrees that Seller shall not have and shall not attempt to be indemnified (eachexercise or assert any right of contribution or indemnity or any other claim whatsoever against the Companies or their Subsidiaries, an “Indemnified Party”) shall have, before the expiration or any Representative of the applicable survival periodforegoing, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) connection with any matter with respect to the Indemnifying Partywhich indemnity is sought from Seller under this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Landamerica Financial Group Inc), Stock Purchase Agreement (Fidelity National Financial, Inc.)
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data Seller Parent, Seller and Other Sellers shall not be obligated to indemnify Datatel Purchaser Indemnified Parties for aggregate Datatel Purchaser Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a9.1(a)(i) in excess of 10% of the Purchase Price; provided, however, that such limitation shall not apply with respect to a breach of a representation or warranty made by Seller (other than its Subsidiaries or the Other Sellers) in Section 10.1(a)(v4.1, 4.2(a), 4.3, 4.5, 4.9 or 4.10. In addition, Seller Parent, Seller and the Other Sellers shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses under this Agreement (including pursuant to Section 9.1(a)(ii), 9.1(a)(iii) or 6.13(e)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000Purchase Price.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Seller Parent, Seller and the Other Sellers shall not be obligated to indemnify the Datatel Purchaser Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i9.1(a)(i), (x) with respect to any individual Datatel Purchaser Loss or series of related Datatel Purchaser Losses of less than seventy-five fifty thousand dollars ($75,00050,000) (the “Minimum Amount”) and (y) unless and until the aggregate Datatel Purchaser Losses (excluding individual Datatel Purchaser Losses or related Datatel Purchaser Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars one percent ($2,000,0001.0%) of the Purchase Price (the “Threshold”), whereupon such indemnification shall be made by SunGard Data Seller only with respect to the amount of such Datatel Purchaser Losses (excluding individual Datatel Purchaser Losses or related Datatel Purchaser Losses less than the Minimum Amount) in excess of the Threshold; provided, however, that the Threshold shall not apply to any breach of a representation or warranty made by Seller in Sections 4.1, 4.2(a), 4.3, 4.5, 4.9 or 4.10.
(c) The representations and warranties of the SunGard Entities, the Company Seller Parties and the Datatel Entities Purchaser contained in Articles IVArticle IV and Article V, V and VI respectively, of this Agreement shall not survive the ClosingClosing until May 31, 2007; provided that (ithe representations and warranties set forth in Sections 4.1, 4.2(a), 4.3, 4.5, 4.9, 5.1, 5.2(a) the Fundamental Representations and 5.5 shall survive indefinitely and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 4.10 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance the expiration of the applicable statute of limitations with their termsrespect to the matters contained therein.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(vSections 6.14(e), 9.1(a)(i), 9.1(a)(ii), 9.1(b)(i) or Section 10.1(b) (other than Section 10.1(b)(iii)9.1(b)(ii) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c9.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Seller Indemnified Party or Datatel Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Avago Technologies LTD), Purchase and Sale Agreement (PMC Sierra Inc)
Certain Limitations. The indemnification provided for in Section 8.02 is subject to the following limitations:
(a) Notwithstanding anything contained herein A Securityholder will not be liable to the contraryParent Indemnitees under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) equals or exceeds $250,000 (the "Deductible"), SunGard Data and once this threshold is met, then only for amounts above the Deductible, up to the Cap; provided, however, that the Deductible shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that apply with respect to Datatel Losses any breach of any Company Fundamental Representation, any claims made pursuant to Section 10.1(a)(i)Sections 3.10 or 3.15, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties or any claim for aggregate Datatel Losses in excess of an amount equal to $177,500,000Fraud.
(b) Notwithstanding anything contained herein to The aggregate amount of all Losses for which the contrary, SunGard Data shall not Securityholders will be obligated to indemnify the Datatel Indemnified Parties under this Agreement liable pursuant to Section 10.1(a)(i8.02, will not exceed an amount equivalent to the Value of the Retained Parent Common Shares on the Release Date plus any other amounts held in the Indemnification Account from time to time (the "Cap") and, with respect to Section 8.02, shall be solely and exclusively recoverable from the Retained Parent Common Shares plus any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (other amounts held in the “Minimum Amount”) and unless and until Indemnification Account from time to time; provided, however, that the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject foregoing provision shall not apply with respect to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall payments required to be made by SunGard Data only the Securityholders pursuant to any breach of the representations made in Sections 3.04 and 3.05, and with respect to breach of any post-closing covenants that are to be performed after the Release Date, for which the cap will be the Closing Consideration actually received by the Securityholders plus the Retained Common Shares (including any other amounts held in the Indemnification Account from time to time) and to the extent such Losses exceed the amount of Retained Parent Common Shares and any other amounts available in the Indemnification Account at such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than time, the Minimum Amount) excess amount will be recoverable in excess of cash from the ThresholdSecurityholders.
(c) The representations amount of any Loss for which indemnification is available to any Parent Indemnitee under this Article VIII shall be calculated after giving effect to, and warranties of to the SunGard Entitiesextent of, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that any such amounts (i) the Fundamental Representations actually recovered by such Party (A) under any insurance policies with respect to such Loss or (B) from third parties, in each case, net of any cost and the representations and warranties set forth expenses incurred by such Parent Indemnitee in Sections 5.1 and 6.1 shall survive indefinitelyprocuring such recovery (including any retention or deductible with respect to insurance policies, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement specifically taken into account as a deduction to be performed after the Closing Consideration in the reconciliation of working capital. The Parent Indemnitees shall survive until the date use their commercially reasonable efforts to recover under available insurance policies or dates explicitly specified therein orindemnity, if not so specifiedcontribution or other similar agreements for any Losses, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that but any such obligations to indemnify and hold harmless efforts shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration a condition of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partyseeking indemnification under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Nordhagen Arlen Dale), Merger Agreement (National Storage Affiliates Trust)
Certain Limitations. The obligations of the Seller Indemnitors with respect to indemnification pursuant to Section 9.1 above shall be subject to the following limitations:
(a) Notwithstanding anything contained herein no indemnification shall be required to be made hereunder (i) with regard to individual claims for $50,000 or less and (ii) unless the aggregate amount of individual claims of greater than $50,000 for which indemnity is sought exceeds $900,000, in which case the right to recover for such claims shall apply to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) full extent of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.such claims;
(b) Notwithstanding anything contained herein to except as otherwise set forth herein, in no event shall the contrary, SunGard Data shall not Seller Indemnitors be obligated to indemnify the Datatel Indemnified Parties under this Agreement provide aggregate indemnification pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) 9.1 in excess of the Threshold.balance of the Escrow Fund and the Escrow Fund shall be the sole and exclusive remedy for any and all indemnification claims made by the Purchaser Indemnified Persons against the Seller Indemnitors;
(c) The except as otherwise set forth herein, no claims for indemnity shall be made after the expiration of the Survival Period;
(d) the limitations in Sections 9.3, 9.4(b) and (c) above shall not apply to any claim against the Seller Indemnitors (i) in tort for intentional misrepresentation, (ii) for any intentional breach of the representation and warranty in Section 3.25; provided that, for the avoidance of doubt, negligence or recklessness shall not constitute intent for purposes of this Section 9.4(d), (iii) for any claim for indemnification in respect to any Excluded Liability or (iv) any claim for indemnification in respect of any matter specified in Schedule 9.1;
(e) the limitation in Section 9.4(b) above shall not apply to any claim arising out of a breach of the representation and warranty in Section 3.15 and the Survival Period for the representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 3.15 shall survive continue until sixty (60) days after the expiration of the applicable statute of limitations, and limitations (iiiincluding any extensions) for the representations and warranties set forth in applicable tax return; and
(f) no Purchaser Indemnified Person shall be entitled to indemnification under Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained 9.1 for any matter which was resolved in the Surviving Pre-Closing Covenants shall survive until the one year anniversary final determination of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party Adjusted Working Capital pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party2.9 hereof.
Appears in 1 contract
Certain Limitations. The party making a claim under this ARTICLE VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this ARTICLE VIII is referred to as the “Indemnifying Party”. The indemnification obligations set forth in this ARTICLE VIII shall be subject to the following limitations:
(a) Subject to the next two sentences, the sole source of indemnification of Buyer pursuant to this ARTICLE VIII shall (after satisfying the Mini-Basket and the Threshold, as and if applicable) be paid from the Indemnity Escrow Account (and only to the extent of the Indemnity Escrow Amount and only to the extent such amount remains in the Indemnity Escrow Account). Notwithstanding the foregoing, but only to the extent such Losses involve a claim under Section 8.2(b) or a breach of a Fundamental Representation and exceed the amount of funds remaining in the Indemnity Escrow Account, Buyer may seek indemnification from Seller for such Losses. Notwithstanding anything contained herein in this Agreement to the contrary, SunGard Data in no event shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and such recovery from Seller exceed the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000Price.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated liable to indemnify the Datatel Indemnified Parties Buyer for indemnification under this Agreement pursuant to Section 10.1(a)(i8.2(a) (other than with respect to any individual Datatel Loss breaches of Fundamental Representations or series in the case of related Datatel Losses of less than seventy-five thousand dollars ($75,000Seller’s Fraud) (the “Minimum Amount”) and unless and until the aggregate Datatel amount of all Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such in respect of indemnification collectively exceed two million dollars ($2,000,000) thereunder exceeds [*] (the “Threshold”), whereupon such indemnification in which event Seller shall be made required to pay or be liable for Losses from the first dollar. No individual claim by SunGard Data only Buyer shall be asserted under Section 8.2 unless and until the aggregate amount of Losses that would be payable pursuant to such claim (or series of related claims) exceeds an amount equal to [*] (the “Mini-Basket”) (it being understood that any such individual claims (or series of related claims) for amounts less than the Mini-Basket shall be ignored in determining whether the Threshold has been exceeded and thereafter). Seller’s maximum liability hereunder for any indemnification claims under Section 8.2(a) (other than with respect to breaches of Fundamental Representations or in the amount case of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum AmountSeller’s Fraud) in excess of the Thresholdshall not, when aggregated with all other indemnification obligations hereunder, exceed [*].
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained Notwithstanding anything in Articles IV, V and VI of this Agreement to the contrary, Buyer understands, acknowledges and agrees that Seller’s maximum liability hereunder for any indemnification claims under Section 8.2 shall not survive not, when aggregated with all other indemnification obligations hereunder, exceed the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely Purchase Price. Solely for purposes of Section 7.4(d)(i)(D)determining the amount of any Losses or whether any breach of representation and warranty has occurred that are the subject matter of a claim for indemnification, the representations each representation and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained warranty in this Agreement shall not survive will be read without regard and without giving effect to the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date term “material” or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms“Material Adverse Effect”.
(d) The obligations to indemnify and hold harmless a Payments by an Indemnifying Party pursuant to Section 10.1(athis ARTICLE VIII in respect of any Loss shall be limited to the amount of any Loss that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other payment or reimbursement received or reasonably expected to be received by the Indemnified Party (or the Acquired Companies) in respect of or in connection with any such Loss, less reasonable and documented deductions for costs incurred in, and premium increases directly arising from, obtaining such proceeds or recoveries. Each Indemnified Party shall seek full recovery under all insurance policies covering any Loss to the same extent it would if such Loss were not subject to indemnification hereunder, and each Indemnified Party shall use commercially reasonable efforts to recover under indemnity, contribution or other similar agreements, or collect other reimbursements, for any Losses prior to seeking indemnification under this Agreement. In the event that any such proceeds or recoveries are received by an Indemnified Party (other than Section 10.1(a)(v)or any of its Affiliates) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item Losses after an Indemnifying Party has made a payment to an Indemnified Party with respect thereto, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds or recoveries, less reasonable and documented deductions for direct costs incurred in obtaining such proceeds and recoveries, up to the amount the Indemnifying Party has paid with respect to such Losses.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach or set of facts that gives rise to such Loss.
(f) Seller shall not be liable under this ARTICLE VIII for any Losses (and the amount of any such Losses shall not be counted toward the Threshold or the Mini-Basket) to the extent that any such Loss (or applicable portion thereof) is caused or increased by an action or inaction by Buyer or any of its Affiliates (including the Acquired Companies) on or after the Closing Date, except for actions or inactions which Buyer and/or its Affiliates (including any Acquired Company) are required to take or otherwise refrain from under applicable Law.
(g) Notwithstanding anything contained elsewhere in this Agreement, the specific amounts that are taken into account in the determination of the Final Closing Statement pursuant to ARTICLE II are subject solely to the adjustment provisions set forth in ARTICLE II and accordingly shall not be subject to any claim by any Indemnified Party for indemnification pursuant to this ARTICLE VIII. Further, the Indemnified Party shall not be entitled to more than one recovery with respect to the same Loss, so as to which avoid duplication or “double counting” of the SunGard same Loss.
(h) Except with respect to Buyer’s recourse to the Indemnity Escrow Amount as a source of recovery for indemnifiable Losses pursuant to this ARTICLE VIII, the parties hereto agree that Buyer shall not have any rights to set-off any Loss it may have against any amount due to Seller.
(i) If an Indemnified Party is entitled to indemnification under more than one clause or subclause of this Agreement with respect to Losses, then such Indemnified Party shall be entitled to only one indemnification or recovery for such Losses; it being understood that this Section 8.4(i) is solely to preclude a duplicate recovery by an Indemnified Party or Datatel Indemnified Party, as recovery in excess of actual damages.
(j) Neither Buyer nor any of its Affiliates shall take any action the case may be, purpose or intent of which is to prejudice the defense of any claim subject to indemnification hereunder or to induce a third party to assert a claim subject to indemnification hereunder.
(k) Any indemnification for breach of representations set forth in Section 5.22 shall be indemnified limited to Losses incurred with respect to any taxable period (each, an “Indemnified Party”or portion thereof) shall have, ending on or before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying PartyClosing Date.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitation:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement For purposes both of determining any inaccuracy in or breach of any representation or warranty and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel computing Losses pursuant to Section 10.1(a)(i)this Article VIII, SunGard Data any inaccuracy in or breach of any representation or warranty shall not be obligated determined, and Losses therefrom computed, without regard to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses any materiality, Material Adverse Effect or other similar qualification contained in excess of an amount equal or otherwise applicable to $177,500,000such representation or warranty.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data A Buyer Indemnitee shall not be obligated entitled to indemnify the Datatel Indemnified Parties under this Agreement indemnification pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series this Article VIII, until the aggregate amount of related Datatel all Losses of less than seventy-five thousand dollars suffered by all Buyer Indemnitees exceeds Fifty Thousand Dollars ($75,00050,000) (the “Minimum AmountBasket”) and unless and ), at which point the full amount of all Losses from the first dollar shall be recoverable. A Seller Indemnitee shall not be entitled to indemnification pursuant to this Article VIII, until the aggregate Datatel amount of all Losses (excluding individual Datatel suffered by all Seller Indemnitees exceeds the Basket, at which point the full amount of all Losses or related Datatel Losses less than from the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification first dollar shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Thresholdrecoverable.
(c) The representations amount of any Losses suffered or incurred by any Buyer Indemnitee or Seller Indemnitee shall be reduced by the amount of any insurance proceeds paid to the indemnified party or any Affiliate thereof as a reimbursement with respect to such Losses (and warranties no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), net of the SunGard Entities, the Company costs of collection and the Datatel Entities contained increases in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date insurance premiums resulting from such Loss or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsinsurance payment.
(d) The obligations In any claim for indemnification under this Agreement, no Person shall be required to indemnify and hold harmless any Person for punitive damages or special damages, unless such punitive damages, or special damages are actually awarded in a Third Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying PartyClaim.
Appears in 1 contract
Certain Limitations. A Person making a claim under this ARTICLE VI is from time to time herein referred to as the “Indemnified Party,” and a Person against whom such claims are asserted is from time to time herein referred to as the “Indemnifying Party.” The indemnification provided for in Section 6.02 and Section 6.03 is subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Sellers shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement indemnification pursuant to Section 10.1(a6.02(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel the Fundamental Representations) until the aggregate amount of all such Losses pursuant in respect of indemnification under Section 6.02(a) (other than with respect to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties Fundamental Representations) exceeds $187,500 (the “Deductible”) and then only for aggregate Datatel Losses in excess of an amount equal the Deductible. With respect to any claim as to which the Buyer may be entitled to indemnification under Section 6.02(a) (other than with respect to the Fundamental Representations), the Sellers shall not be liable for any individual or series of related Losses which do not exceed $177,500,0005,000. For the avoidance of doubt, the Fundamental Representations are not subject to the limitations in this Section 6.04(a).
(b) Notwithstanding anything contained herein to the contrary, SunGard Data The Buyer Indemnitees shall not be obligated entitled to indemnify the Datatel Indemnified Parties under this Agreement indemnification pursuant to Section 10.1(a)(i) 6.02 with respect to any individual Datatel Loss or series once the aggregate amount of related Datatel all Losses of less than seventy-five thousand dollars ($75,000with respect to which the Buyer Indemnitees have received indemnification pursuant to Section 6.02(a) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less other than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses Fundamental Representations) has exceeded $3,750,000 (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c“Cap”); provided, however, that such obligations once the Cap has been reached, the Buyer Indemnitees shall continue thereafter to indemnify be entitled to indemnification pursuant to Section 6.02(a) solely with respect to Fundamental Representations, Section 6.02(b) and hold harmless Section 6.02(c) until the aggregate amount of all Losses with respect to which the Buyer Indemnitees have received indemnification pursuant to Section 6.02 equals the Purchase Price. For the avoidance of doubt, the maximum amount that all Buyer Indemnitees can recover for all indemnification claims under ARTICLE VI shall not terminate exceed the Purchase Price.
(c) Payments by an Indemnifying Party pursuant to this ARTICLE VI in respect of any Loss shall be limited to the amount of Loss that remains after deducting therefrom any insurance proceeds actually received by the Indemnified Parties in respect of any such claim (netted against retroactive premiums arising directly out of or on account of such claim, deductibles and other out-of-pocket costs associated with making or pursuing any such claims). Each Indemnified Party shall use its good faith, commercially reasonable efforts to recover under all insurance policies applicable to any Loss in respect of which a claim for indemnity is made hereunder, including by submitting a claim if requested by the Indemnifying Party to the extent there is a good faith basis to submit a claim; provided, however, that notwithstanding anything to the contrary herein, no Indemnified Party shall be required to initiate litigation under any insurance policies, and the Indemnified Party shall have the right to immediately pursue and recover a claim for indemnification pursuant to this Agreement pending resolution of related insurance claims, subject to the right of the Indemnifying Party to receive insurance proceeds as described in this Section 6.04(c). Notwithstanding the foregoing, the Buyer Indemnitees shall not have any obligation to maintain any insurance policies with respect to any item insurance policy other than the insurance policies of the Company Group Members as to which in effect as of the SunGard Closing. Net insurance proceeds received by an Indemnified Party or Datatel after payment of an indemnification claim hereunder (after deducting therefrom the full amount of the expenses incurred by the Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”Party in procuring such proceeds) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) forthwith be paid over to the Indemnifying PartyParties (pro rata as their interests may exist), but not in excess of the sum of (i) any amount previously so paid to or on behalf of such Indemnified Party in respect of such matter, and (ii) any amount expended by the Indemnifying Party in pursuing or defending any claim arising out of such matter.
(d) Payments by an Indemnifying Party pursuant to this ARTICLE VI in respect of any Loss shall be reduced by an amount equal to any Tax benefit actually realized (net of any Tax detriments actually realized) by the Indemnified Parties within seven (7) years plus ninety (90) days after the Closing Date to the extent arising from such Losses, and such Indemnified Parties shall promptly reimburse such Indemnifying Party for the amount of such reduction.
(e) No Loss may be claimed under Section 6.02 or Section 6.03 by any Indemnified Party to the extent such Loss is reflected as a Liability on the Final Statement and taken into account in the calculation of Closing Working Capital.
(f) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or indirect damages relating to the breach or alleged breach of this Agreement or any Related Agreement (except any such damages awarded to a third party in connection with any Third Party Claims).
(g) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that gives rise thereto.
(h) Notwithstanding anything to the contrary contained in this Agreement, neither of the Sellers shall have any right of contribution, indemnification or similar right (whether at common law, by statute or otherwise) from or against any Company Group Member with respect to any claim for indemnification under Section 6.02.
(i) For purposes of determining under this ARTICLE VI the amount of any indemnifiable Loss, the representations, warranties, covenants and agreements of the Parties set forth in this Agreement (excluding Section 3.26) shall be considered without regard to any qualification based on materiality or “Material Adverse Effect” or words of similar import set forth therein.
Appears in 1 contract
Sources: Securities Purchase Agreement (Atkore International Holdings Inc.)
Certain Limitations. (ai) Notwithstanding anything to the contrary contained in this Agreement: (A) in no event shall Seller be required to pay the Seller Termination Fee on more than one occasion; (B) in no event shall Seller be entitled to receive the Escrow Amount on more than one occasion; and (C) payment of the Additional Note Amount and the 15% Note Amount shall be conditioned upon and subject to receipt by Seller of the 15% Note and the Additional Draw Note, each with full title and guarantee free from all Liens (thereon and thereunder, other than Permitted Liens thereon), for transfer by Seller to HNR for cancellation in partial satisfaction of the HNR Intercompany Note.
(ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 10.9 (which shall not be limited by this Section 8.3(c)(ii)) Buyer’s right to receive (A) payment from Seller of the Seller Termination Fee pursuant to Section 8.3(a), (B) payment of the 15% Note Amount and the Additional Draw Note Amount pursuant to Section 8.3(a)(i) and Section 8.3(a)(ii) and (C) waiver of any and all rights of HNR and Seller under the Letter of Credit or any Replacement Letter of Credit pursuant to Section 8.3(c)(i), shall, respectively, constitute the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Buyer and its Affiliates or any other Person against Seller and its Subsidiaries and any of their respective former, current or future, direct or indirect equityholders, general or limited partners, stockholders, members, managers, controlling persons, directors, officers, employees, agents, Affiliates or Representatives, or any of their respective successors or assigns or other representative of any of the foregoing, (collectively, the “Seller Related Parties”) in connection with the termination of this Agreement or any Losses or liabilities in connection with this Agreement or the Related Agreements, and upon payment and waiver, as applicable, of such amounts, none of the Seller Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Related Agreements or the Sale of Subject Shares (except that, to the extent any failure to consummate the Sale of Subject Shares resulted, directly or indirectly, from an Intentional Breach of this Agreement by Seller or HNR or such Intentional Breach by Seller or HNR shall cause the Closing not to occur, Buyer shall be entitled to the payment of the Seller Termination Fee (and, if applicable, the 15% Note Amount and the Additional Draw Note Amount pursuant to Section 8.3(a)(i)) and to any Losses, to the extent proven, in respect of such Intentional Breach, as reduced by the amount of the Seller Termination Fee paid to Buyer).
(iii) Notwithstanding anything to the contrary contained in this Agreement, Seller’s right to receive the Escrow Amount via a draw on the Letter of Credit or any Replacement Letter of Credit pursuant to Section 8.3(a) and Section 8.3(b) shall constitute the sole and exclusive remedy of HNR, Seller and their Affiliates or any other Person against Buyer and its Subsidiaries and any of their respective former, current or future, direct or indirect equityholders, general or limited partners, stockholders, members, managers, controlling persons, directors, officers, employees, agents, Affiliates or Representatives, or any of their respective successors or assigns or other representative of any of the foregoing, (collectively, the “Buyer Related Parties”) in connection with the termination of this Agreement or any Losses or liabilities in connection with this Agreement or the Related Agreements, and upon payment and waiver, as applicable, of such amounts, none of the Buyer Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Related Agreements or the Sale of Subject Shares (it being understood that nothing in this Section 8.3(c)(iii) shall restrict or limit in any way HNR’s or Seller’s right to specifically enforce the Surviving Provisions pursuant to Section 10.9 in the event that this Agreement is terminated).
(iv) Other than with respect to the Retained Claims, all Legal Proceedings (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to (A) this Agreement, the Related Agreements or the Sale of Subject Shares, (B) the negotiation, execution or performance of this Agreement, the Related Agreements (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement or the Related Agreements), (C) any breach of this Agreement or the Related Agreements and (D) any failure of the Sale of Subject Shares to be consummated, may be made only by or against (and are those solely of) the Persons that are expressly identified as parties hereto and thereto. No other Buyer Related Party shall have any liabilities (whether in contract or in tort, in law or in equity, or granted by statute, or otherwise) for any Legal Proceedings arising under, out of, in connection with or related in any manner to the items in the immediately preceding clauses (A) through (D) except for Legal Proceedings that HNR or Seller may assert: (I) against any Person that is party to, and solely pursuant to the terms of, the Securities Purchase Agreement or any Related Agreement; and (II) against Buyer, solely in accordance with, and pursuant to the terms of, this Agreement (the Legal Proceedings in clauses (I) and (II) of this Section 8.3(iv), the “Retained Claims”). Notwithstanding anything herein to the contrary, SunGard Data shall not be obligated the parties hereto acknowledge and agree that, including in the case of any breach, whether willful and material, intentional, material, knowing or otherwise, (x) in no event will Buyer or any other Buyer Related Party have liability for monetary damages whatsoever arising under, out of, in connection with or related in any manner to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(aitems in the preceding clauses (A) through (D) (other than Section 10.1(a)(v)including monetary damages in lieu of specific performance) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties amount of the SunGard EntitiesEscrow Amount, and, accordingly, the Company Escrow Amount shall be the maximum aggregate liability of Buyer hereunder and the Datatel Entities contained thereunder (and any other Buyer Related Party); and (y) in Articles IVno event shall HNR, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitelySeller, (ii) solely for purposes of Section 7.4(d)(i)(D)their Affiliates, the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration their respective stockholders or Representatives or any other Person seek, directly or indirectly, to recover against any of the applicable statute of limitationsBuyer Related Parties, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary or compel any payment by any of the Closing. The covenants and agreements contained Buyer Related Parties of, any damages or other payments whatsoever that are, in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained aggregate, in the Surviving Pre-Closing Covenants shall survive until the one year anniversary excess of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsEscrow Amount.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 1 contract
Sources: Share Purchase Agreement (Harvest Natural Resources, Inc.)
Certain Limitations. The party making a claim under this Article VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VIII is referred to as the “Indemnifying Party”. The indemnification provided for in Section 8.02, Section 8.03 and Section 8.08 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Sellers shall not be obligated liable to indemnify Datatel the Buyer Indemnified Parties for indemnification under Section 8.02(a), Section 8.02(d) and/or Section 8.08 until the aggregate Datatel amount of all Losses for which the Sellers are required to indemnify the Buyer Indemnified Parties under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than 8.02(a), Section 10.1(a)(v)8.02(d) and Section 10.1(a8.08 exceeds Ten Million Dollars ($10,000,000) of (the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i“Deductible”), SunGard Data in which event the Sellers shall not only be obligated required to indemnify the Datatel Indemnified Parties pay or be liable for aggregate Datatel such Losses in excess of an amount equal to $177,500,000the Deductible.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyers shall not be obligated liable to the Seller Indemnified Parties for indemnification under Section 8.03(a) until the aggregate amount of all Losses for which the Buyers are required to indemnify the Datatel Seller Indemnified Parties under this Agreement pursuant Section 8.03(a) exceeds the Deductible in which event the Buyers shall only be required to Section 10.1(a)(i) with respect to any individual Datatel Loss pay or series of related Datatel be liable for such Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdDeductible.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained Notwithstanding anything in Articles IV, V and VI of this Agreement shall not survive or the Closing; provided that (i) CIT Bank Agreement or any Delivered Lost Note Affidavit to the Fundamental Representations and contrary, with respect to any claims as to which the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Buyer Indemnified Parties may be entitled to indemnification under Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c8.02(a), Section 5.20 and 8.02(d) and/or Section 5.21 8.08, if the aggregate Losses (excluding any attorneys’ fees relating to such Losses) relating to any single Transferred Interest or CIT Bank Transferred Interest are less than Sixty Five Thousand Dollars ($65,000) (such amount, the “Per Claim Threshold”), none of such Losses shall survive until be counted toward the one year anniversary Deductible. For the avoidance of doubt, the Closing. The covenants and agreements contained in this Agreement Per Claim Threshold shall not survive apply once the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsDeductible has been satisfied.
(d) The obligations At the end of each three (3)-month period during the period from the October Closing Date through the date on which the Deductible has been satisfied, each Party shall provide written notice (along with reasonable supporting documentation) to the other Parties of the incurrence of any all Losses during such three (3)-month period which will, or can be reasonably expected to, count toward the Deductible after taking into account the limitations set forth in this Section 8.04.
(e) Notwithstanding anything in this Agreement, the CIT Bank Agreement or any Lost Note Affidavit to the contrary, in no event shall Sellers be required to indemnify and hold harmless the Buyer Indemnified Parties for or on account of Losses resulting from, arising out of or relating to any Covered Repair or Denial Actions (even if any such Losses are also covered by any indemnity in Section 8.08 hereof or in any Lost Note Affidavit or are alleged to have resulted from, arisen out of or relate to a Party pursuant to Section 10.1(abreach by Sellers or CIT Bank of any of their representations, warranties, covenants or agreements set forth herein or in the CIT Bank Agreement) for any amount in excess of eight million five hundred thousand dollars ($8,500,000) (other than Section 10.1(a)(v)the “Repair and Denial Cap”) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when after the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c)Deductible has been satisfied; provided, however, that if the Final Purchase Price Adjustment Calculation reflects a Missing Remaining Required Document Percentage of more than twenty percent (20%), then the Repair and Denial Cap shall be automatically increased to ten million dollars ($10,000,000) without any further action of the Parties hereto. Any such obligations increase in the Repair and Denial Cap shall be the sole and exclusive remedy of the Buyer Indemnified Parties for any failure of the Applicable Sellers to indemnify deliver to Buyers any Remaining Required Documents or other documents relating to the Transferred Loans and neither Sellers nor any of their Affiliates shall be required to indemnify, hold harmless or otherwise compensate or reimburse any Buyer Indemnified Parties, pursuant to Article VIII hereof, pursuant to any Lost Note Affidavit, or otherwise, for any Losses incurred or sustained by, or imposed upon, any Buyer Indemnified Party as a result of, related to or arising out of any failure of the Applicable Sellers to deliver to Buyers any Remaining Required Documents or other documents relating to the Transferred Loans.
(f) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 8.02(a), Section 8.03(a) or Section 8.08 (which liability shall not terminate with respect include any Losses resulting from, arising out of or relating to any item as Covered Repair or Denial Actions even if any such Losses are also covered by any indemnity in Section 8.08 hereof or in any Lost Note Affidavit or are also alleged to which have resulted from, arisen out of or relate to a breach by Sellers or CIT Bank of any of their representations or warranties set forth herein or in the SunGard Indemnified Party or Datatel Indemnified PartyCIT Bank Agreement), as the case may be, shall not exceed thirty three million dollars ($33,000,000).
(g) Payments by an Indemnifying Party pursuant to Section 8.02, Section 8.03 or Section 8.08 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be indemnified received by the Indemnified Party in respect of any such claim; provided, however, such payments shall include the amount of any out-of-pocket expenses incurred in connection with pursuing recovery under such insurance or indemnity, contribution or other similar agreement. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement.
(eachh) In no event shall any Indemnifying Party be liable to indemnify any Indemnified Party pursuant to this Article VIII for any punitive, an incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity or diminution of value or any damages based on any type of multiple (except, in the case of punitive, special, or exemplary damages, to the extent that such damages are actually paid or awarded to a third-party in connection with a Third Party Claim).
(i) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
(j) Notwithstanding anything in this Agreement or the CIT Bank Agreement to the contrary, (a) the Property Taxes Deduct shall be the sole and exclusive remedy of the Buyer Indemnified Parties for any Losses or diminution in value of the Purchased Assets resulting from, caused by or arising out of any Tax-related Encumbrances on or against any real estate Collateral securing any Transferred Loan or any Transferred CIT Bank Loan or any REO Property relating to any Transferred Loan or Transferred CIT Bank Loan (collectively, “Tax Lien Losses”), and (ii) the Other Charges Deduct shall be the sole and exclusive remedy of the Buyer Indemnified PartyParties for any Losses or diminution in value of the Purchased Assets or the CIT Bank Purchased Assets resulting from, caused by or arising out of any other Encumbrances on or against any real estate Collateral securing any Transferred Loan or any Transferred CIT Bank Loan or any REO Property relating to any Transferred Loan or Transferred CIT Bank Loan (collectively, “Other Lien Losses”) and (b) in no event shall have, before the expiration of Applicable Sellers be required to indemnify any Buyer Indemnified Party for any Tax Lien Losses or Other Lien Losses pursuant to this Article VIII or otherwise pursuant to this Agreement or the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying PartyCIT Bank Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sutherland Asset Management Corp)
Certain Limitations. The indemnification provided for in Sections 8.1 and 8.2 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Seller and Shareholder shall not be obligated liable to indemnify Datatel the Buyer Indemnified Parties for aggregate Datatel Losses indemnification under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a8.2(b) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Sections 3.1, 3.2, 3.4, 3.9 and 3.26 (the “Buyer Basket Exclusions”)), until the aggregate amount of all Losses in respect of indemnification under Section 10.1(a)(v)) and Section 10.1(a) 8.2 (other than those based upon, arising out of, with respect to or by reason of the Asset Purchase Agreement Buyer Basket Exclusions) exceeds $100,000, in which event Seller shall be required to pay or be liable for all such Losses over such amount. Seller nor Shareholder shall be required to indemnify Buyer Indemnified Parties pursuant to Section 8.2(b) in an aggregate amount in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify 35% of the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000Initial Purchase Price.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyer shall not be obligated liable to the Seller Indemnified Parties for indemnification under Section 8.1 (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.1 or 4.2 (the “Seller Basket Exclusions”) until the aggregate amount of all Losses in respect of indemnification under Section 8.1(b) (other than those based upon, arising out of, with respect to or by reason of the Seller Basket Exclusions) exceeds $100,000, in which event Buyer shall be required to pay or be liable for all such Losses over such amount. Buyer shall not be required to indemnify the Datatel Seller Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i8.1(b) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the in an aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of 25% of the ThresholdInitial Purchase Price.
(c) The representations and warranties Solely for purposes of the SunGard Entitiescalculating any Loss under this Article VIII, any inaccuracy in or breach or any representation or warranty shall be determined without regard to any materiality, Materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty. Additionally, the Company caps and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties baskets set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement Article VIII shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect apply to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration claims of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partyfraud.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein Except in the case of Fraud, (i) the Parent Indemnified Parties, as a group, may not recover any Losses pursuant to an indemnification claim under Section 7.2(a)(i)(C) (Other Representations) unless and until the contraryParent Indemnified Parties, SunGard Data as a group, shall not be obligated to indemnify Datatel have paid, incurred, suffered or sustained at least $450,000 in Losses in the aggregate (the “Company Indemnitors Deductible”), at which time the Parent Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant shall be entitled to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement recover solely such amounts in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel the Company Indemnitors Deductible, and (ii) the Company Stockholder Indemnified Parties may not recover any Losses pursuant to an indemnification claim under Section 10.1(a)(i7.2(b)(i)(B) (Other Representations) unless and until the Company Stockholder Indemnified Parties shall have paid, incurred, suffered or sustained at least $450,000 in Losses in the aggregate (the “Parent Parties Deductible”), SunGard Data shall not be obligated to indemnify at which time the Datatel Company Stockholder Indemnified Parties for aggregate Datatel Losses shall be entitled to recover solely such amounts in excess of an amount equal to $177,500,000the Parent Parties Deductible.
(b) Notwithstanding anything contained herein Subject to the contrarylimitations set forth in Section 2.6 and this Section 7.3, SunGard Data shall not be obligated to indemnify (i) during the Datatel twelve (12) month survival period set forth in Section 7.1, the Parent Indemnified Parties under this Agreement shall be entitled to recover any Losses by way of setoff from Parent’s obligation to issue Parent Common Stock (or to pay cash) in respect of the Deferred Amount for an indemnification claim made pursuant to Section 10.1(a)(i7.2(a), and (ii) with during the twenty four (24) month survival period set forth in Section 7.1, the Parent Indemnified Parties shall be entitled to recover any Losses by way of setoff from Parent’s obligation to issue Parent Common Stock (or to pay cash) in respect of the remaining Deferred Amount, if any, to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to extent such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”claim is made pursuant to Section 7.2(a), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties Any indemnity amounts payable to a Parent Indemnified Party in accordance with this Article VII shall be satisfied: (i) first, by way of setoff from Parent’s obligation in respect of the SunGard EntitiesDeferred Amount, if any, in accordance with Section 7.2(a)(x), and (ii) second, from the Company Indemnitors in accordance with Section 7.2(a)(y). Any indemnity amounts payable to a Company Stockholder Indemnified Party in accordance with this Article VII shall be satisfied either in cash or Parent Common Stock, on a Pro Rata Share basis, in the sole discretion of Parent and subject to Section 2.3(c).
(d) In no event shall the Datatel Entities contained aggregate liability of the Company Indemnitors under this Article VII (in Articles IV, V and VI accordance with each Company Indemnitor’s Pro Rata Share) (i) for all indemnification claims under Section 7.2(a)(i)(C) (Other Representations) of this Agreement exceed $4,500,000, and (ii) for all other indemnification claims under this Agreement exceed $40,624,210 (unless such indemnity claim is being made in respect of Fraud committed by such Company Indemnitor, Section 7.2(a)(i)(B) (Critical Representations), Section 7.2(a)(iii) (Allocation Schedule) or Section 7.2(a)(iv) (Unpaid Pre-Closing Taxes, Closing Transaction Expense Amount or Closing Indebtedness Amount; PPP Loan Escrow), in which event there shall not survive be no limitation on the Closingliability of such Company Indemnitor hereunder or under applicable Law). In no event shall the aggregate liability of the Parent and Parent Holdco LLC under this Article VII for all indemnification claims under Section 7.2(b)(i)(B) (Other Representations) of this Agreement exceed $4,500,000, and for all other indemnification claims under this Agreement exceed $40,624,210 (unless such indemnity claim is being made in respect of Fraud committed by Parent or Parent Holdco LLC, in which event there shall be no limitation on the liability of Parent and Parent Holdco LLC hereunder or under applicable Law).
(e) The amount of any Losses that are subject to indemnification under this Article VII shall be calculated net of the amount of any insurance proceeds, indemnification payments or reimbursements actually received by the Indemnified Parties from third parties (other than in respect of the Deferred Amount) in respect of such Losses (net of any reasonable and actual out-of-pocket costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums attributable to such recovery); provided that nothing in this Section 7.3(e) shall be construed as or give rise to an obligation to seek any such insurance, indemnification or reimbursement.
(f) For purposes of this Article VII, each share of Parent Common Stock (including the Deferred Amount, as applicable) shall be deemed to have a value equal to the Parent Stock Price as of the date of the final determination of the relevant claim.
(g) For the avoidance of doubt, any Losses for indemnification under this Agreement shall be determined without duplication of recovery due to the facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement.
(h) The Parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise resulting from or arising out of this Agreement will be pursuant to the indemnification provisions set forth in this Article VII; provided, that the foregoing clause of this sentence shall not be deemed a waiver by any party of (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitelyany right to specific performance, equitable or injunctive relief, (ii) solely for purposes of Section 7.4(d)(i)(D)any right or remedy under any Related Agreement to which it is a party, the representations or (iii) any right or remedy with respect to a Party’s own Fraud, and warranties set forth in Section 5.9 all claims related thereto shall survive until sixty thirty (6030) days after following the expiration of the applicable statute of limitations. Subject to the other limitations contained herein, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary obligations of the Closing. The covenants and agreements contained in Company Indemnitors under this Agreement Article VII shall not survive be reduced, offset, eliminated or subject to contribution by reason of any action or inaction by the Closing; provided Company that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect contributed to any item as inaccuracy or breach giving rise to which such obligation, it being understood that the SunGard Indemnified Party or Datatel Indemnified PartyCompany Indemnitors, as not the case may beCompany, to be indemnified (each, an “Indemnified Party”) shall have, before have the expiration of sole obligation for the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partyindemnification obligations under this Article VII.
Appears in 1 contract
Sources: Merger Agreement (Comscore, Inc.)
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.Following Closing:
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and Sellers shall not be liable to Buyer Indemnified Persons under Section 10.2(a)(i) for any breach of or inaccuracy in any of the representations and or warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) Article III (other than Section 10.1(a)(vFundamental Representations) unless the aggregate Losses incurred by the Buyer Indemnified Persons exceed (the “Basket”)) or Section 10.1(b) (other than Section 10.1(b)(iii)) , and then the Sellers shall terminate when be jointly and severally liable to the applicable representationBuyer Indemnified Persons for the full amount of all Losses from the first dollar, warranty or covenant terminates pursuant including Losses needed to Section 10.2(c)meet the Basket; provided, however, no claims for which the aggregate amount of Losses of the Buyer Indemnified Persons arising from such claims is less than (the “Mini Basket”) shall be included in determining whether the Basket has been met; provided further, however, that such obligations to indemnify and hold harmless once the Basket is met, all Losses (including Losses that are less than the Mini Basket) shall be recoverable by the Buyer Indemnified Persons;
(ii) Buyer shall not terminate be liable to the Seller Indemnified Persons under Section 10.2(c)(i) for any breach of or inaccuracy in any of Buyer’s representations or warranties (other than Fundamental Representations) unless the aggregate Losses incurred by the Seller Indemnified Persons exceed the Basket, and then Buyer shall be liable for the full amount of all Losses from the first dollar, including Losses needed to meet the Basket; provided, however, no claims for which the aggregate amount of Losses of the Seller Indemnified Persons arising from such claims is less than the Mini Basket shall be included in determining whether the Basket has been met; provided further, however, that once the Basket is met, all Losses (including Losses that are less than the Mini Basket) shall be recoverable by the Seller Indemnified Persons;
(iii) the aggregate amount required to be paid by the Sellers pursuant to Section 10.2(a)(i) (other than with respect to any item as breaches of Fundamental Representations), Section 10.2(a)(iv) and Section 10.2(b)(i) (other than with respect to which breaches of the SunGard Indemnified Party or Datatel Indemnified Party, as Fundamental Representations) shall not exceed (the case may be, “Cap”);
(iv) the aggregate amount required to be indemnified paid by Buyer pursuant to Section 10.2(c)(i) (each, an “Indemnified Party”other than with respect to breaches of Fundamental Representations) shall have, before not exceed the expiration Cap;
(v) in no event will any Seller be liable under this Article X for any Losses in excess of the applicable survival period, previously made a claim cash proceeds or value of the Issued Units actually received by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.Seller;
Appears in 1 contract
Certain Limitations. For purposes of determining whether there is or was an inaccuracy in, or whether there has been a breach of, any representation or warranty herein, all qualifications in the representations and warranties herein as to “material”, “materiality” or “Material Adverse Effect” qualifiers or words of similar import contained in or applicable to such representation or warranty, shall be regarded. In addition, notwithstanding anything to the contrary in this Agreement, other than for claims for Fraud or intentional misrepresentation, the indemnification provided for in this Agreement shall be subject to the following limitations and qualifications:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Purchaser Indemnified Parties shall not be obligated entitled to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement any indemnification from the Seller and the Asset Purchase Agreement Equityholders pursuant to Section 10.1(a12.02(a) (other than in connection with breaches of Fundamental Representations) until the aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant to Section 10.1(a)(v)12.02(a) and Section 10.1(a) of exceeds, in the Asset Purchase Agreement in excess of an aggregate, the amount equal to One Million Dollars ($1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i1,000,000) (the “Deductible”), SunGard Data shall not be obligated to indemnify after which the Datatel Purchaser Indemnified Parties for aggregate Datatel shall be entitled to recover all Losses in excess of an amount the Deductible, subject to a cap equal to $177,500,000the Indemnity Escrow Amount for breaches of any non-Fundamental Representations and the other limitations set forth herein. For the avoidance of doubt, the Purchaser Indemnified Parties shall be entitled to dollar one indemnification from the Seller and Equityholders pursuant to Section 12.02(a) for breaches of Fundamental Representations and for indemnification from the Seller and Equityholders pursuant to Section 12.02(b)-(j), Section 12.03, Section 12.04, Section 12.05 or Section 12.06.
(b) Notwithstanding anything contained herein to Except in the contrarycase of Fraud or intentional misrepresentation, SunGard Data shall not be obligated to indemnify under no circumstances will the Datatel Purchaser Indemnified Parties under this Agreement pursuant be entitled to Section 10.1(a)(i) with respect to recover from the Seller and Equityholders, in the aggregate, any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) amounts in excess of the ThresholdClosing Purchase Price in respect of any and all claims for indemnification for breaches of Fundamental Representations asserted under Section 12.02(a).
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement Each Purchaser Indemnified Party shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitationstake, and (iii) the representations and warranties set forth in Section 5.4(c)cause its Affiliates to take, Section 5.20 and Section 5.21 shall survive until the one year anniversary all commercially reasonable steps to mitigate all Losses after it becomes aware of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided any event that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement could reasonably be expected to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsgive rise to any Losses that are subject to indemnification hereunder.
(d) The obligations to indemnify and hold harmless a An Indemnified Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate be entitled under this Agreement to multiple recoveries for the same Loss against all or any other Parties.
(e) No Purchaser Indemnified Party shall be entitled to indemnification under this ARTICLE XII with respect to any item Losses to the extent that such Losses have been included as a monetary amount in the final Closing Statement.
(f) After any indemnification payment is made to any Indemnified Party pursuant to this ARTICLE XII, the Indemnifying Party shall, to the extent of such payment, be subrogated to all rights (if any) of the Indemnified Party against any third party in connection with the Losses to which such payment relates. Without limiting the SunGard generality of the preceding sentence, any Indemnified Party or Datatel Indemnified Partyreceiving an indemnification payment pursuant to the preceding sentence shall execute, as upon the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration written request of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party, any instrument reasonably necessary to evidence such subrogation rights.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to The Stockholders and the contrary, SunGard Data Seller shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer Indemnitees for indemnification under Section 9.02(a) until the aggregate Datatel amount of all Losses in respect of indemnification under this Agreement Section 9.02(a) exceeds $200,000 (the “Basket”), in which event the Stockholders and the Asset Purchase Agreement Seller shall be required to pay or be liable for all such Losses over and above the Basket. The aggregate amount of all Losses for which the Stockholders and the Seller shall be liable pursuant to Section 10.1(a9.02(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify exceed $2,000,000 (the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000“Cap”).
(b) Notwithstanding anything contained herein to the contraryforegoing, SunGard Data the limitations set forth in Section 9.04(a) shall not be obligated apply to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) Losses based upon, arising out of, with respect to or by reason of any individual Datatel Loss inaccuracy in or series breach of related Datatel Losses any Fundamental Representation, any representation or warranty set forth in the second sentence of less than seventy-five thousand dollars Section 4.10 ($75,000) (the “Minimum Amount”) Condition and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”Sufficiency of Assets), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Thresholdfraud, gross negligence, or willful misconduct.
(c) The representations Notwithstanding anything to the contrary contained herein, from and warranties after Closing each Stockholder shall severally and not jointly with the Seller or other Stockholder indemnify and defend each of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that Buyer Indemnitees for (i) the Fundamental Representations and the representations and warranties a breach by such Stockholder of any representation or warranty set forth in Sections 5.1 and 6.1 shall survive indefinitely, ARTICLE III that relates solely to such individual Stockholder or (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties such Stockholder’s breach or failure to perform any covenant or agreement set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided herein that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement relates solely to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termssuch individual Stockholder.
(d) The obligations In no event shall Stockholders and Seller in the aggregate be liable to indemnify the Buyer Indemnitees for indemnification under this Agreement (including, ARTICLES VII and hold harmless a Party pursuant to Section 10.1(aIX) (in an amount exceeding the amount of the Purchase Price, other than Section 10.1(a)(v)in connection with claims based upon the fraud or intentional misconduct of Stockholders or Seller. In no event shall either Stockholder in the aggregate be liable to the Buyer Indemnitees for indemnification under this Agreement (including, ARTICLES VII and IX) or Section 10.1(b) (in an amount exceeding the amount of the Purchase Price received by such Stockholder, other than Section 10.1(b)(iii)) shall terminate when in connection with claims based upon the applicable representation, warranty fraud or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis intentional misconduct of such claim) to the Indemnifying PartyStockholder.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data FBR and FNLC shall not be obligated to indemnify Datatel Indemnified Parties provide indemnification to the Sun Indemnitees for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to exceeding, in the aggregate $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i)15,000,000 (such aggregate amount, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum AmountCap”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such the Sun Indemnitees shall only be entitled to indemnification from FBR and FNLC for 80% of any Losses in excess of $10,000,000; and provided further, that the Sun Indemnitees shall be entitled to indemnification without regard to the Cap for any Loss attributable to (i) any indemnification obligation pursuant to Sections (b), (c), (f) or (g) of Exhibit H, (ii) fraud, (iii) any breach of any representation or warranty of FBR, FNLC or the Company in this Agreement or the Securities Purchase Agreement, which breach was made with reckless disregard for the truth or accuracy thereof, (iv) any intentional or willful breach by FBR or FNLC of any covenant, which breach was made with reckless disregard of FBR’s or FNLC’s obligations to indemnify and hold harmless under this Agreement, or (v) as provided in Section 7.5(e).
(b) The Company shall not terminate be obligated to provide indemnification to the Sun Indemnitees for an amount exceeding, in the aggregate $1,250,000 (such aggregate amount, the “Company Cap”); provided, however, that the Sun Indemnitees shall only be entitled to indemnification from the Company for 20% of any Losses in excess of $10,000,000; and provided further, that the Sun Indemnitees shall be entitled to indemnification without regard to the Company Cap for any Loss attributable to (i) any indemnification obligation pursuant to Sections (b) or (c) of Exhibit H, (ii) fraud, (iii) any breach of any representation or warranty of FBR, FNLC or the Company, which breach was made with reckless disregard for the truth or accuracy thereof or with the intent to mislead or defraud NLC Holding, (iv) any intentional or willful breach by FBR, FNLC or the Company of any covenant, which breach was made with reckless disregard of FBR’s or FNLC’s obligations under this Agreement or with the intent to mislead or defraud NLC Holding, or (v) as provided in Section 7.5(e).
(i) Except as provided below, any indemnification obligation of FBR or FNLC up to the Cap payable hereunder shall, at FBR’s option, be satisfied either in cash or by an assignment to NLC Holding of: (i) FNLC’s right to payment of any Loans (as defined in the Loan Agreement); or (ii) Units (as defined in the Company’s Fourth Amended and Restated Operating Agreement) or other capital of the Company held by FNLC or its permitted assigns. To the extent any indemnification obligation is satisfied with Units of the Company, (A) prior to the Second Closing, such Units will be valued at a per Unit price equal to (x) the aggregate amount of any Loan made by FBR that is converted into equity in accordance with this Agreement or the Loan Agreement divided by (y) the number of Units held by FBR at the time of such indemnification payment, and (B) after the Second Closing, (x) $15,000,000.00 divided by (y) the number of Units held by FBR immediately following the Second Closing. Notwithstanding the foregoing, any indemnification obligation pursuant to Sections (f) or (g) of Exhibit H or Section 7.5(e), shall be satisfied in cash by wire transfer of immediately available funds to an account identified by the applicable Sun Indemnitees.
(c) In no event shall NLC Holding be obligated to provide indemnification pursuant to Section 7.2(a) exceeding, in the aggregate, the Cap; provided, however, that the FBR Indemnitees shall be entitled to indemnification without regard to the Cap for any Loss attributable to (i) fraud, (ii) any breach of any representation or warranty of NLC Holding, which breach was made with reckless disregard for the truth or accuracy thereof or (iii) any intentional or willful breach by NLC Holding of any covenant, which breach was made with reckless disregard of NLC Holding’s obligations under this Agreement.
(d) FBR, FNLC and the Company shall only be obligated to provide indemnification pursuant to Section (d) of Exhibit H with respect to the Class Action Lawsuits to the extent any item as such Losses exceed the reserve for the Class Action Lawsuits set forth in the Estimated Closing Balance Sheet.
(e) FBR, FNLC and the Company shall be obligated to which provide indemnification pursuant to Section (e) of Exhibit H only to the SunGard Indemnified Party or Datatel Indemnified Partyextent that any Losses thereunder exceed the reserve for Mortgage Loan Losses set forth on the Estimated Closing Balance Sheet, as the case may be, to be indemnified provided that (each, an “Indemnified Party”i) FBR and FNLC shall have, before the expiration also provide indemnification for 80% of $3,750,00 of Losses in excess of the applicable survival periodCap, previously made a claim up to an additional $3,000,000, and (ii) the Company shall also provide indemnification for 20% of $3,750,00 of Losses in excess of the Cap, up to an additional $750,000. In addition, upon the later of March 1, 2008 or resolution of any claims under Section (e) of Exhibit H, the Company shall pay to FNLC (in cash by delivering a written notice (stating in reasonable detail the basis wire transfer of such claimimmediately available funds) an amount, if any, equal to the Indemnifying Partyexcess, if any, of the reserve for Mortgage Loan Losses set forth on the Estimated Closing Balance Sheet, over such Mortgage Loan Losses incurred prior to December 31, 2007 (with no amount payable if such formula results in a negative number). The Company may set-off any payment payable to FNLC under this Section 7.5(e) against any indemnification obligations owed to FBR or FNLC under Section 7.1.
(f) FBR and FNLC shall be obligated to provide indemnification pursuant to Section (g) of Exhibit H only to the extent that any Losses thereunder exceed the reserve for Real Estate Losses set forth on the Final Closing Balance Sheet (as defined in the Loan Agreement).
Appears in 1 contract
Sources: Recapitalization Agreement (Friedman Billings Ramsey Group Inc)
Certain Limitations. (a) Notwithstanding anything contained herein to Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the contrary, SunGard Data Seller shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement liable pursuant to Section 10.1(a7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (other than i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 10.1(a)(v)7.2(a)(i) and Section 10.1(a) of the Asset Purchase Agreement in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to $1,775,000,000; provided that with respect to Datatel Losses the Purchase Price actually received by the Seller pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000this Agreement.
(b) Notwithstanding anything contained herein to the contrarycontrary herein, SunGard Data except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not be obligated to indemnify exceed the Datatel Indemnified Parties under this Agreement aggregate Purchase Price actually received by the Seller pursuant to Section 10.1(a)(ithis Agreement, and (ii) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than liability of Buyer for all Damages under Section 7.2(b) shall not exceed the Minimum Amount) subject aggregate Purchase Price actually paid by the Buyer pursuant to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Thresholdthis Agreement.
(c) The representations and warranties parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of the SunGard Entitiesmultiple, the Company and the Datatel Entities contained except, in Articles IVeach case, V and VI of this Agreement shall not survive the Closing; provided that (i) in the Fundamental Representations event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and and/or warranties set forth in Sections 5.1 and 6.1 this Agreement.
(e) No Buyer Indemnified Person shall survive indefinitelybe entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) solely for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that determining (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary whether there has been any misrepresentation or breach of the Closing a representation or warranty and (ii) the covenants and agreements contained amount of any Damages resulting therefrom, all qualifications or exception in this Agreement and any representation or warranty relating to or referring to the Asset Purchase Agreement to terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsdisregarded.
(dg) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other than Section 10.1(a)(v)) Tax asset or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration liability of the applicable survival period, previously made a claim by delivering a written notice Acquired Companies in any taxable period (stating in reasonable detail or portion thereof) beginning after the basis of such claim) to the Indemnifying PartyClosing.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein Subject to the contraryother limitations in this Article VIII, SunGard Data shall not be obligated including without limitation Section 8.8(a):
(i) Sellers are to have no obligation to indemnify Datatel the Buyer Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement Persons pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a8.1(a)(i) of the Asset Purchase this Agreement in excess of an amount equal to $1,775,000,000; provided that (except with respect to Datatel the Seller Fundamental Representations) unless the aggregate amount of all such Losses pursuant to Section 10.1(a)(i)incurred or suffered by the Buyer Indemnified Persons exceeds the Basket (at which point Sellers (severally, SunGard Data on the basis of the Pro Rata Percentage of each Seller) shall not be obligated to indemnify and hold harmless the Datatel Buyer Indemnified Parties Persons for aggregate Datatel all such Losses in excess of an amount equal the Basket, subject to $177,500,000the other limitations set forth in Article VIII).
(bii) Notwithstanding anything contained herein Except with respect to the contrarySeller Fundamental Representations, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 10.1(a)(i8.1(a)(i) of this Agreement is not to exceed the Retention Escrow Amount solely to the extent such amount remains available in the Escrow Fund.
(iii) The aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(i) for any breach of, or inaccuracy in, the Seller Fundamental Representations, or for claims for indemnification pursuant to Sections 8.1(a)(iii) and 8.1(a)(iv), shall not exceed $880,000 (less any amounts previously applied against the retention under the R&W Policy with respect to any individual Datatel Loss other claims for indemnification pursuant to Sections 8.1(a)(i) or series 8.1(a)(ii)) solely to the extent such amount remains available in the Escrow Fund.
(iv) The aggregate Liability of related Datatel Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(v) of this Agreement is not to exceed the Indemnity Escrow Amount solely to the extent such amount remains available in the Escrow Fund, except that claims for indemnification for New Matters may exceed such amount and be brought after the exhaustion of the Escrow Fund, but not in excess of $1,000,000 individually or in the aggregate.
(v) The aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(ii) of this Agreement is not to exceed the Aggregate Cap.
(vi) For the avoidance of doubt, the limitations set forth in Section 8.1(b)(i) of this Agreement are not to apply to claims for indemnification pursuant to Sections 8.1(a)(ii) through Section 8.1(a)(v) of this Agreement.
(vii) Payments by any Sellers pursuant to Section 8.1(a) of this Agreement in respect of any Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect limited to the amount of such Datatel Losses any Liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the applicable Buyer Indemnified Person (excluding individual Datatel however, recoveries under the R&W Policy) within twelve (12) months from when Losses or related Datatel Losses less than the Minimum Amount) occurred in excess respect of the Threshold.
any such claim (c) The representations and warranties net of the SunGard Entities, the Company costs of recovery and the Datatel Entities contained present value of any associated increase in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(Dinsurance premiums or retentions), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement Buyer Indemnified Persons shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement use commercially reasonable efforts to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c)recover under insurance policies; provided, however, that such obligations to indemnify and hold harmless the Buyer Indemnified Persons shall not terminate be required to commence any litigation or bear any expenses not fully reimbursed by Sellers in connection with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partyefforts.
Appears in 1 contract
Sources: Membership Interest and Warrant Purchase Agreement (Hibbett Sports Inc)
Certain Limitations. Any party making a claim under this Article VII is referred to as an “Indemnified Party,” and the party against whom such claims are asserted under this Article VII is referred to as the “Indemnifying Party.” The indemnification provided for in Section 5.05(b) and Article VII shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Sellers shall not be obligated liable to indemnify Datatel an Indemnified Parties Party for aggregate Datatel Losses indemnification under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)7.02(a)(i) and (ii) until the aggregate amount of all Losses in respect of indemnification under Section 10.1(a7.02(a)(i) and (ii) exceeds 0.75% of the Asset Base Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(iPrice (the “Deductible”), SunGard Data in which event Sellers shall not only be obligated required to indemnify the Datatel Indemnified Parties pay or be liable for aggregate Datatel Losses in excess of an amount equal the Deductible; provided that the Deductible shall not apply to $177,500,000any Losses as result of a breach of the Several Representations or the Fundamental Representations or resulting from Fraud.
(b) Notwithstanding anything contained herein Subject to the contraryother limitations imposed by this Article VII, SunGard Data all claims against the Sellers for indemnification under this Agreement, including any claims for the Tax Indemnity and claims under Article VII, shall be paid and satisfied solely from the Escrow Account, to the extent of any funds then remaining therein; provided, however, that (i) Losses resulting from the common law liability of any Seller to Buyer for fraud in the event of a final determination by a court of competent jurisdiction that any Seller committed fraud against Buyer (“Fraud”), and (ii) Losses resulting from the indemnification provisions of Section 7.02(b), in each case, shall not be obligated to indemnify satisfied from the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Escrow Account but, instead, Buyer may recover such Losses of less than seventy-five thousand dollars ($75,000) (directly from the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Thresholdoffending Seller.
(c) The representations and warranties Each Seller’s maximum liability hereunder for any indemnification claims for the Several Representations or for any Seller’s Fraud shall not, when aggregated with all other indemnification obligations hereunder, exceed the portion of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsPrice actually received by such Seller.
(d) The obligations to indemnify and hold harmless a Payments by an Indemnifying Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)5.05(b) or Article VII in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party (or an Acquired Company) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under other insurance policies for any Losses prior to seeking indemnification under this Agreement. In the event any Indemnifying Party pays any indemnification amount to an Indemnified Party, and such Indemnified Party then receives an insurance payment, or other indemnity or contribution payment, then such Indemnified Party shall promptly repay to such Indemnifying Party a refund equal to the aggregate amount of such recovery but not in excess of the amount previously paid by such Indemnifying Party to such Indemnified Party for the indemnification claim.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise to an indemnification obligation hereunder; provided, however, that no Indemnified Party or its Affiliates shall be required to make any material monetary expenditure, commence or participate in any proceeding, offer or grant any material accommodation to any Person, or take, or refrain from taking, any action that would or would reasonably be expected to adversely affect the business, operations, results or condition (financial or otherwise) of such Indemnified Party or its Affiliates in any material respect in connection with such mitigation.
(f) No Seller shall have any liability with respect to either Fraud or a breach of any of the Several Representations by any other Seller, and Buyer agrees not to seek recovery against a Seller with respect to either Fraud or a breach of the Several Representations by another Seller.
(g) Notwithstanding anything contained elsewhere in this Agreement, the amount of any Loss subject to indemnification under Section 10.1(b) (other than Section 10.1(b)(iii)) 7.02 shall terminate when be calculated net of any amounts to the applicable representationextent, warranty but only to the extent, specifically reflected or covenant terminates reserved for in the Financial Statements or the Final Balance Sheet and taken into account in determining the amount of the Purchase Price pursuant to Section 10.2(cArticle II.
(h) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (collectively, “Excess Damages”); provided, however, that such obligations to indemnify and hold harmless this limitation shall not terminate be applicable to indemnification claims for Excess Damages required to be paid to a third party by an Indemnified Party as a result of a Third-Party Claim.
(i) If an Indemnified Party is entitled to indemnification under more than one clause or subclause of this Agreement with respect to any item as to which the SunGard Losses, then such Indemnified Party shall be entitled to only one indemnification or Datatel Indemnified Party, as recovery for such Losses to the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration extent it arises out of the applicable survival periodsame set of circumstances and events; it being understood that this Section 7.04(j) is solely to preclude a duplicate recovery by an Indemnified Party (i.e., previously made a claim by delivering a written notice recovery in excess of actual damages).
(stating j) Notwithstanding anything contained elsewhere in reasonable detail the basis of such claim) this Agreement, Buyer shall not seek or be entitled to indemnification for any Losses based upon or relating to the Indemnifying PartyTheater Repairs or the Lease Amendments (including, without limitation, any alleged breach of the representations and warranties in Section 3.10 solely related to either the Company’s historical accounting treatment of the Leases or the Lease Amendments).
Appears in 1 contract
Sources: Stock Purchase Agreement (Amc Entertainment Holdings, Inc.)
Certain Limitations. (a) Notwithstanding anything contained herein to Except as otherwise expressly provided herein, Seller (on behalf of itself and as agent for the contrary, SunGard Data Other Sellers) shall not be obligated to indemnify Datatel Purchaser Indemnified Parties for aggregate Datatel Purchaser Losses under this Agreement and the Asset Purchase Agreement as follows:
(i) pursuant to Section 10.1(a) (other than Section 10.1(a)(v)Sections 9.1(a)(i) and Section 10.1(a) of the Asset Purchase Agreement 9.1(a)(ii), in excess of an amount equal to $1,775,000,000; 18% of the Purchase Price (the “Indemnity Cap”), provided, that any Purchaser Losses from any breach of a representation or warranty made by Seller in Sections 4.1 (Corporate Existence), 4.2(a), 4.2(b)(A) and 4.2(b)(C) (Corporate Authority) (collectively, the “Seller Corporate Representations”) shall not be subject to any limitation, other than as provided that with respect to Datatel Losses in Section 11.18 hereof;
(ii) pursuant to Section 10.1(a)(i9.1(a)(iii), SunGard Data in excess of the Purchase Price; and
(iii) pursuant to Sections 9.1(a)(iv) and 9.1(a)(v), without any limitation, other than as provided in Section 11.18 hereof.
(b) Purchaser (on behalf of itself and as agent for any Affiliates) shall not be obligated to indemnify the Datatel Seller Indemnified Parties for aggregate Datatel Seller Losses as follows:
(i) pursuant to Sections 9.1(b)(i) and 9.1(b)(ii), in excess of an amount equal to $177,500,000the Indemnity Cap, provided, that any breach of a representation or warranty made by Purchaser in Sections 5.1 (Corporate Existence) and 5.2 (Corporate Authority) (together, the “Purchaser Corporate Representations”) shall not be subject to any limitation, other than as provided in Section 11.18 hereof;
(ii) pursuant to Section 9.1(b)(iii), in excess of the Purchase Price; and
(iii) pursuant to Section 9.1(b)(iv), without any limitation, other than as provided in Section 11.18 hereof.
(bc) Notwithstanding anything contained herein here to the contrary, SunGard Data Seller (on behalf of itself and as agent for the Other Sellers) shall not be obligated to indemnify the Datatel Purchaser Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i(x) with respect to any individual Datatel Purchaser Loss or series of related Datatel Losses of less than seventy-five ten thousand dollars EXECUTION VERSION ($75,00010,000.00) (the “Minimum Amount”) and (y) unless and until the aggregate Datatel Purchaser Losses (excluding individual Datatel Losses or related Datatel Purchaser Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million hundred fifty thousand dollars ($2,000,000250,000.00) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only Seller with respect to the amount of such Datatel Purchaser Losses (excluding individual Datatel Purchaser Losses less than the Minimum Amount); provided, however, that the Threshold shall not apply to (i) a breach of the Seller Corporate Representations, or (ii) the matters described in Sections 9.1(a)(iii), 9.1(a)(iv) or 9.1(a)(v) hereof.
(d) Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to indemnify Seller Indemnified Parties under this Agreement (x) with respect to any individual Seller Loss of less than the Minimum Amount and (y) unless and until the aggregate Seller Losses (excluding individual Seller Losses or related Datatel Seller Losses less than the Minimum Amount) in excess subject to such indemnification collectively exceed the Threshold whereupon such indemnification shall be made by Purchaser with respect to the amount of such Seller Losses; provided, however, that the Threshold shall not apply to (i) a breach of the ThresholdPurchaser Corporate Representations, or (ii) the matters described in Sections 9.1(b)(iii) or 9.1(b)(iv) hereof.
(ce) The representations and warranties of the SunGard Entities, the Company Seller and the Datatel Entities Purchaser contained in Articles IVARTICLE IV and ARTICLE V, V and VI respectively, of this Agreement and any other Transaction Document shall not survive the Closing until 12 months after the Closing; provided provided, however, that (i) the Fundamental Seller Corporate Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 Purchaser Corporate Representations shall survive until the one year anniversary expiration of the Closingany applicable statute of limitation, including any suspensions, tollings or extensions thereof. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance the expiration of the applicable statute of limitations, including any suspensions, tollings or extensions thereof, with their termsrespect to the matters contained therein.
(df) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(vSections 9.1(a)(i), 9.1(a)(ii), 9.1(a)(iii), 9.1(b)(i), 9.1(b)(i)(ii) or Section 10.1(b) (other than Section 10.1(b)(iii)9.1(b)(iii) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c9.2(e); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Seller Indemnified Party or Datatel Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated liable under Section 6.2(a) with respect to indemnify Datatel Losses unless the aggregate amount of such Losses incurred by the Purchaser Indemnified Parties with respect to all matters for aggregate Datatel Losses which indemnification is to be provided under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a6.2(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of exceeds an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i20,000 (the “Basket Amount”), SunGard Data shall not and if and when such Basket Amount is met, then Seller will be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel liable under Section 6.2(a) only in respect of all Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contraryBasket Amount, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant subject in all respects to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”6.5(b) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c6.5(c); provided, however, that such obligations to indemnify and hold harmless limitation shall not terminate apply to any claim for indemnification for a breach of or inaccuracy in any Fundamental Representation or any claim based on Fraud.
(b) Subject to the other limitations in this Article VI, Seller’s maximum aggregate liability for Losses pursuant to Section 6.2(a), and the Purchaser Indemnified Parties’ sole and exclusive recourse for Losses against Seller pursuant to Section 6.2(a), shall not exceed and be limited in the aggregate to $700,000 (the “Cap”); provided, however, that such limitation shall not apply to any claim for indemnification for a breach of or inaccuracy in any Fundamental Representation or any claim based on Fraud. Subject to the other limitations in this Article VI, Purchaser’s maximum aggregate liability for Losses pursuant to Section 6.3(a), and the Seller Indemnified Parties’ sole and exclusive recourse for Losses against Purchaser pursuant to Section 6.3(a), shall not exceed and be limited in the aggregate to the Cap; provided, however, that such limitation shall not apply to any claim for indemnification for a breach of or inaccuracy in any Fundamental Representation or any claim based on Fraud.
(c) Subject to the other limitations in this Article VI and the immediately following sentence, in the event that any Purchaser Indemnified Party or Seller Indemnified Party suffers a Loss that is entitled to indemnification pursuant to Section 6.2 or Section 6.3, respectively, including in respect of breaches of any Fundamental Representation, the maximum aggregate amount that all Purchaser Indemnified Parties or Seller Indemnified Parties, respectively, may recover from Seller or Purchaser, respectively, with respect to any item as and all such Losses shall be equal to which the SunGard Indemnified Party or Datatel Indemnified Party, as Purchase Price. The limitations on the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration rights of the applicable survival periodPurchaser Indemnified Parties or Seller Indemnified Parties to seek recourse against Seller or Purchaser, previously made a claim by delivering a written notice (stating respectively, set forth in reasonable detail the basis of such claim) this Section 6.5 shall not apply to the Indemnifying PartySeller’s or Purchaser’s liability for claims based on Fraud.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein No Ceding Company shall be obligated to indemnify and hold harmless its Indemnitees for any claims or Indemnifiable Losses arising under Section 8.02(a)(i), (i) with respect to any claim (or series of related claims arising from the same underlying facts, events or circumstances), unless such claim (or series of related claims) involves Indemnifiable Losses in excess of [***] (the “Threshold Amount”) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which such Ceding Company is responsible under clause (ii) below), (ii) unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees for such claims or Indemnifiable Losses arising under Section 8.02(a)(i) in the aggregate with respect to all Ceding Companies exceeds [***] (the “Deductible”), at which point such Ceding Company shall be liable to its Indemnitees for the value of the Indemnitee’s claims for such claims or Indemnifiable Losses arising under Section 8.02(a)(i) that is in excess of the Deductible, subject to the contrarylimitations set forth in this Article VIII and (iii) the maximum aggregate liability of the Ceding Companies, SunGard Data in the aggregate, to Reinsurer Indemnified Persons for any and all Indemnifiable Losses pursuant to this Agreement for claims pursuant to Section 8.02(a)(i) shall be [***] (the “Cap”). The aggregate amount of all Indemnifiable Losses for which the Ceding Companies in the aggregate shall be liable pursuant to Section 8.02(a)(i), (a)(ii), and (a)(iii) shall not exceed [***] (the “Aggregate Cap”).
(b) Reinsurer shall not be obligated to indemnify Datatel Indemnified Parties and hold harmless its Indemnitees for aggregate Datatel any claims or Indemnifiable Losses arising under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i8.02(b)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(ii) with respect to any individual Datatel Loss claim (or series of related Datatel claims arising from the same underlying facts, events or circumstances), unless such claim (or series of related claims) involves Indemnifiable Losses in excess of less than seventy-five thousand dollars the Threshold Amount ($75,000nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which Reinsurer is responsible under clause (ii) below), (the “Minimum Amount”ii) and unless and until the aggregate Datatel amount of all Indemnifiable Losses (excluding individual Datatel of the Indemnitees for such claims or Indemnifiable Losses or related Datatel Losses less than arising under Section 8.02(b)(i) exceeds the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) Deductible (the “ThresholdReinsurer Deductible”), whereupon such indemnification at which point Reinsurer shall be made by SunGard Data only with respect liable to its Indemnitees for the amount value of the Indemnitee’s claims for such Datatel claims or Indemnifiable Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amountarising under Section 8.02(b)(i) that is in excess of the ThresholdReinsurer Deductible, subject to the limitations set forth in this Article VIII and (iii) the maximum aggregate liability of Reinsurer to Ceding Company Indemnified Persons for any and all Indemnifiable Losses pursuant to this Agreement for claims pursuant to Section 8.02(b)(i) shall be an amount equal to the Cap. The aggregate amount of all Losses for which Reinsurer shall be liable pursuant to Sections 8.03(b)(i), 8.03(b)(ii) and 8.03(b)(iii) shall not exceed the sum of the Aggregate Cap.
(c) The representations and warranties Each Indemnitee shall use commercially reasonable efforts to mitigate all Indemnifiable Losses for which indemnification may be sought hereunder, including by using commercially reasonable efforts to collect the maximum amount recoverable with respect thereto under any insurance or reinsurance coverage or other applicable source of recovery, net of the SunGard Entitiesamount of the costs and expenses incurred by the Indemnitee in procuring such recovery. In the event an Indemnitee fails to use such commercially reasonable efforts, then the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement Indemnitor shall not survive be required to indemnify the Closing; provided Indemnitee for that (i) portion of Indemnifiable Losses that could reasonably have been expected to have been avoided if the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsIndemnitee had used such commercially reasonable efforts.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(aamount of any Indemnifiable Losses suffered by an Indemnitee shall be reduced (i) (other than Section 10.1(a)(v)) by any amount received by such Indemnitee or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representationits Affiliates with respect thereto under any insurance policy, warranty or covenant terminates pursuant indemnity (calculated net of any reasonable and documented out-of-pocket expenses incurred by such Person or its Affiliates in collecting such amount and net of the amount of any actual increase in such Person's and its Affiliates annual insurance premium directly arising out of the claim for such Indemnifiable Loss), or otherwise from any non-Affiliate alleged to Section 10.2(c); providedbe responsible for any Indemnifiable Losses (calculated net of any reasonable and documented out-of-pocket expenses incurred by such Person in collecting such amounts) and (ii) the amount of any Tax benefit realizable by such Indemnitee or its Affiliates with respect to such Indemnifiable Loss. The Indemnitee shall use commercially reasonable efforts to collect any amounts available under insurance policies, howeverwarranties or indemnities, that or recoverable from non-Affiliates, with respect to Indemnifiable Losses incurred by such obligations Indemnitee. If the Indemnitee or its Affiliate receives any amounts under insurance policies, warranties or indemnitees, or from any non-Affiliate alleged to indemnify be responsible for any Indemnifiable Losses, in each case in connection with a matter giving rise to an indemnification payment, then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such Indemnitor in connection with providing such indemnification up to the amount received by the Indemnitee or its Affiliates, in each case net of any deductible, retention, costs or other expenses incurred by the Indemnitee in connection therewith and hold harmless net of the amount of any increase in such Person's and its Affiliates' annual insurance premium arising out of such Indemnifiable Loss.
(e) Notwithstanding anything to the contrary contained in this Agreement, no Reinsurer Indemnified Person shall not terminate be entitled to indemnification with respect to any item as particular Indemnifiable Loss to which the SunGard Indemnified Party extent the related liability or Datatel Indemnified Party, as obligation is reflected or provided for in the case may be, to Final Closing Statement.
(f) Any liability for indemnification under this Agreement shall be indemnified (each, an “Indemnified Party”) shall have, before the expiration determined without duplication of recovery by reason of the applicable survival periodstate of facts giving rise to such liability constituting a breach of more than one representation, previously made a claim by delivering a written notice (stating in reasonable detail warranty, covenant or agreement. For the basis avoidance of such claim) doubt, no party shall be entitled to collect indemnification with respect to the Indemnifying Partysame underlying subject matter more than once.
(g) [***].
Appears in 1 contract
Sources: Master Transaction Agreement (Equitable Holdings, Inc.)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Stockholders shall not be obligated liable to indemnify Datatel Indemnified Parties the Parent Indemnitees for indemnification under Section 8.02(a) until the aggregate Datatel amount of all Losses in respect of indemnification under this Agreement and Section 8.02(a) exceeds $250,000 (the Asset Purchase Agreement “Basket”), in which event Stockholders shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Stockholders shall be liable pursuant to Section 10.1(a8.02(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify exceed the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000Holdback (the “Cap”).
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Parent shall not be obligated liable to indemnify the Datatel Indemnified Parties Stockholder Indemnitees for indemnification under this Agreement Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 10.1(a)(i8.03(a) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (shall not exceed the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdCap.
(c) The representations and warranties of Notwithstanding the SunGard Entitiesforegoing, the Company limitations set forth in Section 8.04(a) and the Datatel Entities contained in Articles IV, V and VI of this Agreement Section 8.04(b) shall not survive the Closing; provided that apply to Losses based upon, arising out of, with respect to or by reason of (i) fraud or intentional misrepresentation, for which the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 aggregate amount of Losses for which Stockholders shall survive indefinitelybe liable is uncapped, (ii) solely any inaccuracy in or breach of any Fundamental Representation, for purposes which the aggregate amount of Section 7.4(d)(i)(D)Losses for which Stockholders shall be liable shall not exceed the Purchase Price, the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) any inaccuracy in or breach of any IP Representation, for which the representations aggregate amount of Losses for which Stockholders shall be liable shall not exceed 50% of the Purchase Price, (iv) any Taxes under ARTICLE VI, for which the aggregate amount of Losses for which Stockholders shall be liable shall not exceed the Purchase Price; and warranties set forth (v) the matters described in Section 5.4(cSections 8.02(f), Section 5.20 (g), (h) and Section 5.21 (i), for which the aggregate amount of Losses for which Stockholders shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement be liable shall not survive exceed the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsPrice.
(d) For the sole purpose of determining Losses (and not for determining whether any breach of any representation or warranty has occurred), any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(e) The obligations to indemnify amount of any Losses for which an Indemnifying Party is liable under this ARTICLE VIII shall be reduced by (i) the amount of any Tax benefit actually realized by the Indemnified Party and hold harmless a (ii) by the amount of any insurance proceeds actually received from an insurance carrier by an Indemnified Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect thereto (net of applicable deductibles or similar costs or payments), in each case as arising from the event that gives rise to any item as such Losses or from the incurrence or payment of thereof.
(f) In the event that any GE subdivision or entity, including without limitation those entities set forth on Schedule 8.04(f), which is a party to which a statement of work, purchase order or other customer order under the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified GE Contract (each, an each a “Indemnified PartyGE Contract SOW”) terminates, fails to renew or reduces the amount of Annual Service Fee under such GE Contract SOW (or any successor GE Contract SOW following a renewal or change in control) during the Holdback Period as measured on the Holdback Release Date, and the aggregate amount of revenue reduction attributable to such event or events for all such GE Contract SOWs exceeds the aggregate increase in the amount of Annual Service Fees, if any, under all such GE Contract SOWs (or any successor GE Contract SOW following a renewal or change in control) during the Holdback Period as measured on the Holdback Release Date (such excess amount the “Aggregate GE Reduction”) then the amount of Loss attributable to such Aggregate GE Reduction shall havebe $[ * ] minus the product of (i) the amount of Annual Service Fee calculated on the Holdback Release Date after giving effect to such Aggregate GE Reduction times (ii) the ARR Multiple. For the sake of clarity, before Parent and the expiration Company hereby agree that should (i) the GE Contract be assigned or otherwise transferred in connection with a change of control, sale, assignment or other transfer of General Electric Company or (ii) any GE Contract SOW be assigned or otherwise transferred in connection with a change of control, sale, assignment or other transfer of any GE subdivision or entity party to a GE Contract SOW, and the GE Contract or such GE Contract SOW is not terminated in connection with such event or events, then any revenue reduction or increase derived from the GE Contract or such GE Contract SOW following such event or events shall be included in any calculation of the applicable survival periodAggregate GE Reduction. In addition, previously made a claim by delivering a written notice (stating in reasonable detail the basis parties agree that the amount of Annual Service Fee set forth on Schedule 8.04(f) next to each party thereon shall be the amount of Annual Service Fee for such claim) to party for purposes of calculating the Indemnifying PartyAggregate GE Reduction.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein to the contrarycontrary in this Agreement, SunGard Data but subject to Section 10.3(b), (i) Seller shall not be obligated required to indemnify Datatel Indemnified Parties any Purchaser Indemnitee, nor shall Seller have any liability under Section 10.1(a), unless the total amount of all Damages exceeds the Tipping Basket Amount, then the Purchaser Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for aggregate Datatel Losses under this Agreement the entire amount of such Damages, and not merely the Asset Purchase Agreement pursuant portion of such Damages exceeding the Tipping Basket Amount; provided, that, subject to Section 10.1(a) (other than Section 10.1(a)(v10.3(b)) and , Seller shall not be required to indemnify any Purchaser Indemnitee, nor have any liability, under Section 10.1(a) of ), in the Asset Purchase Agreement aggregate in excess of an amount equal to $1,775,000,000[***]% of the Purchase Price; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data and (ii) Purchaser shall not be obligated required to indemnify any Seller Indemnitee, nor shall Purchaser have any liability under Section 10.2(a), unless the Datatel Indemnified Parties total amount of all Damages exceeds the Tipping Basket Amount, then the Seller Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for the entire amount of such Damages, and not merely the portion of such Damages exceeding the Tipping Basket Amount; provided, that, subject to Section 10.3(b), Purchaser shall not be required to indemnify any Seller Indemnitee, nor have any liability, under Section 10.2(a), in the aggregate Datatel Losses in excess of an amount equal to $177,500,000[***]% of the Purchase Price.
(b) Notwithstanding anything contained herein Subject to Section 10.3(c), (i) the contrary, SunGard Data Seller shall not be obligated required to indemnify any Purchaser Indemnitee, nor shall the Datatel Indemnified Parties Seller have any liability, under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(f) and unless and until Section 10.1(h) in the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Thresholdcash amounts actually received by the Seller under this Agreement, and (ii) Purchaser shall not be required to indemnify any Seller Indemnitee, nor shall Purchaser have any liability, under Section 10.2(b) or Section 10.2(d) in the aggregate in excess of the cash amounts actually received by the Seller under this Agreement.
(c) The representations and warranties of Notwithstanding anything in this Article 10 to the SunGard Entitiescontrary, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties limitations set forth in Section 5.9 shall survive until sixty (6010.3(a) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement 10.3(b) shall not survive the Closing; provided that apply to Damages arising out of, relating to, or in connection with (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and any liability under Section 10.1(e) or Section 10.1(g), or (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to any liability under Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 1 contract
Certain Limitations. (ai) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated required to indemnify Datatel Indemnified Parties the Purchaser Indemnitees with respect to Losses set forth in any claim for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement indemnification pursuant to Section 10.1(a9(a)(i)(a) (other than for claims relating to the alleged breach of any representation or warranty relating to Taxes) to the extent that the aggregate liability of Seller to Purchaser Indemnitees under Section 10.1(a)(v)9(a)(i)(a) and Section 10.1(aexceeds five percent (5%) of the Asset Purchase Price actually paid under this Agreement in excess of an amount equal to $1,775,000,000(the “Cap”); provided that with respect such Cap shall not apply to Datatel Losses pursuant to Section 10.1(a)(i)the extent the foregoing arises as a direct result of the gross negligence, SunGard Data bad faith or willful misconduct of any Seller Party or any breach by Seller of any of its obligations under this Agreement.
(ii) Purchaser shall not be obligated required to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) Seller Indemnitees with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000set forth in any claim for indemnification pursuant to Section 9(b)(i)(a) (to the “Minimum Amount”) and unless and until extent that the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect liability of Purchaser to the amount of Seller Indemnitees under Section 9(b)(i)(a) exceeds the Cap; provided that such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than Cap shall not apply to the Minimum Amount) in excess extent the foregoing arises as a direct result of the Thresholdgross negligence, bad faith or willful misconduct of any Purchaser Party or any breach by Purchaser of any of its obligations under this Agreement.
(ciii) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; rights to indemnification provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement Section 9 shall not survive be the Closing; provided that (i) the covenants sole and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary exclusive remedy of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date Purchaser or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified PartySeller, as the case may be, with respect to be indemnified (eacha Transferred Interest after the Applicable Closing with respect to such Transferred Interest for any breaches of or inaccuracy of any applicable representation, an “Indemnified Party”) shall havewarranty, before the expiration covenant or agreement of the applicable survival periodSeller or Purchaser, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partyrespectively, herein.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein to Other than in the contrarycase of (i) fraud or willful breach or (ii) any inaccuracy of any of the Fundamental Representations and Warranties, SunGard Data the Indemnifying Party shall not be obligated liable to indemnify Datatel the Indemnified Parties Party for indemnification under Section 8.2(a) or Section 8.3(a), unless and until the aggregate Datatel amount of the indemnification obligations exceeds One Hundred Thousand Dollars ($100,000) (the “Basket”), in which event the Indemnifying Party shall then be required to pay or be liable for all Losses under this Agreement and in excess of $100,000. Any adjustments to the Asset Purchase Agreement Price made pursuant to Section 10.1(a2.5(b) or Section 2.5(c) shall not be subject to or count towards the Basket.
(other b) Other than Section 10.1(a)(v)in the case of (i) fraud or willful breach or (ii) any inaccuracy of any Fundamental Representations and Section 10.1(a) of Warranties, the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data Seller shall not be obligated to indemnify the Datatel Buyer Indemnified Parties for under Section 8.2(a) in an aggregate Datatel Losses amount in excess of an amount equal to $177,500,000two-thirds of the Escrow Payment.
(bc) Notwithstanding anything contained herein to Other than in the contrarycase of fraud or willful breach, SunGard Data the Seller shall not be obligated to indemnify the Datatel Buyer Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”8.2(a), whereupon such indemnification shall be made by SunGard Data only solely with respect to the Fundamental Representations and Warranties, or under Section 8.2(b)–(g), inclusive, in an aggregate amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsEscrow Payment.
(d) The obligations Other than in the case of fraud or willful breach, the Buyer shall not be obligated to indemnify the Seller Indemnified Parties or the Seller be obligated to indemnify the Seller Indemnified Parties in an aggregate amount in excess of the Escrow Payment.
(e) Payments with respect to any Loss shall be limited to the amount of any Loss that remains after deducting therefrom any insurance proceeds and hold harmless a any indemnity, contribution or other similar payment actually received by the Indemnified Party pursuant in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to Section 10.1(arecover under insurance policies or indemnity, contribution or other similar agreements for any Losses.
(f) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when For the applicable sole purpose of determining the amount of any damages with respect to any breach of any representation, warranty or covenant terminates pursuant by the Seller for purposes of indemnification under this Article 8 (and not for determining whether or not any breaches of representations, warranties or covenants have occurred), any qualification or limitation of a representation, warranty or covenant by reference to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item materiality of matters stated therein or as to which the SunGard Indemnified Party matters having or Datatel Indemnified Partynot having “Material Adverse Effect,” “materiality” or words of similar effect, as the case may be, to shall be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partydisregarded.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cord Blood America, Inc.)
Certain Limitations. Except with respect to Losses arising as a result of fraud or willful concealment (for which the limitations set forth in this Section 7.4 shall not apply), the indemnification provided for in Section 7.2 and liability with respect to any Buyer Warranty Claim shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Seller Parties shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) liable in respect of any Buyer Warranty Claim (other than Section 10.1(a)(v)) and Section 10.1(a) a breach of the Asset Purchase Agreement Fundamental Warranties) to the extent that the matter giving rise to the Buyer Warranty Claim is Disclosed in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard the Data shall not be obligated to indemnify Room or the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000Disclosure Schedules.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data The Seller Parties shall not be obligated liable to indemnify the Datatel Buyer Indemnified Parties under this Agreement pursuant to Section 10.1(a)(ifor indemnification in respect of any Buyer Warranty Claim until the aggregate amount of all Losses in respect of indemnification in respect of any Buyer Warranty Claim (together with any connected Buyer Warranty Claim) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) exceeds £40,000 (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “ThresholdDeductible”), whereupon such indemnification in which event the Seller Parties shall be made by SunGard Data only with respect to liable for the whole amount of the Losses and not just the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdDeductible; provided, however, that the Deductible shall not apply to claims for breaches of the Fundamental Warranties or, for the avoidance of doubt, claims under Section 7.2(a) and Section 7.2(b). For the purposes of this Section 7.4(b), a Buyer Warranty Claim is connected with another Buyer Warranty Claim if it arises from the same facts, events or circumstances.
(c) The representations and warranties aggregate amount of all Losses for which the Seller Parties shall be liable in respect of any Buyer Warranty Claim shall not exceed 70% of the SunGard Entities, Purchase Price actually paid (the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c“General Cap”); provided, however, that such obligations to indemnify and hold harmless the General Cap shall not terminate apply to claims for breaches of the Fundamental Warranties or, for the avoidance of doubt, claims under Section 7.2(a) and Section 7.2(b).
(d) The aggregate amount of all Losses for which the Seller Parties shall be liable in respect of any Buyer Warranty Claim including with respect to any item as claims for breaches of the Fundamental Warranties, or claims under Section 7.2(a) (but for the avoidance of doubt excluding any claims pursuant to which Section 7.2(b)) shall not exceed the SunGard Purchase Price.
(e) Payments by the Seller Parties in respect of any Buyer Warranty Claim shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds or other payments actually received by the Buyer Indemnified Parties from a third party (net of any deductible amounts) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or Datatel Indemnified Partyindemnity, as contribution or other similar agreements for any Losses but seeking recovery from any insurance policies shall not be a pre-condition to the case may beBuyer seeking recovery from the Seller Parties under this Agreement.
(f) Each party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Losses upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including using commercially reasonable endeavors to incur costs only to the minimum extent necessary to remedy the breach that gives rise to such Losses. The Buyer shall not be entitled to recover any Loss more than once under this Agreement or any Transaction Document.
(g) Notwithstanding anything to the contrary contained in this Agreement, to the maximum extent permitted by applicable Law, in no event shall either party hereto be indemnified liable in connection with this Agreement, the negotiation of this Agreement or the transactions contemplated hereby for special, indirect, incidental, exemplary or punitive damages whether or not caused by or resulting from the actions of such party or the breach of its covenants, agreements, representations or warranties hereunder and whether or not based on or in warranty, contract, tort (eachincluding negligence or strict liability) or otherwise.
(h) The Seller Parties shall not be liable in respect of any Buyer Warranty Claim to the extent that the matter giving rise to the Buyer Warranty Claim results from or is increased by (and if increased, an “Indemnified Party”only to the extent that it is increased by):
(i) shall have, any act or omission before Closing carried out at the expiration written request of the applicable survival periodBuyer or any member of the Buyer’s Representatives; or
(ii) any act, previously made event, occurrence or omission of the Buyer after the Closing Date.
(i) The Seller Parties shall not be liable in respect of any Buyer Warranty Claim to the extent that the matter giving rise to the Buyer Warranty Claim constitutes a claim by delivering contingent liability or relates to a written liability which is not capable of being quantified until such liability becomes an actual liability of the Seller Party or becomes capable of being quantified. This paragraph shall not relieve the Buyer from any obligation to give notice in respect of any matter which constitutes a contingent liability on the Buyer or relates to a liability which is not capable of being quantified.
(stating in reasonable detail j) The Seller Parties shall not be liable for any Buyer Warranty Claim if and to the basis extent that the Buyer had actual knowledge at the Closing of such claim) breach of a Seller Warranty and that such breach would enable it to bring a Buyer Warranty Claim. For this purpose, the Indemnifying PartyBuyer shall only be deemed to have the knowledge of anything of which ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ have actual knowledge as at the date of Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Wd 40 Co)
Certain Limitations. Notwithstanding the provisions of this Article IX, after the Closing with the exception of indemnification for breaches of Fundamental Representations, (ai) Notwithstanding anything contained herein to the contrary, SunGard Data Purchaser Indemnified Parties shall not be obligated entitled to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement recover pursuant to Section 10.1(a9.2(a)(i) (other than except in respect of breaches of any representation or warranty in Section 10.1(a)(v3.17(d)) and Section 10.1(a) of until the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that Losses incurred with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
matter (b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars matters) giving rise to such breach exceed in the aggregate Twenty Thousand Dollars ($75,00020,000) (the “Minimum AmountMini-Basket”), and then, in such case, the entire amount of such Losses (including the portion thereof comprising of the Mini-Basket) shall count towards the Basket and shall, subject to clauses (ii) and unless and until (iii) below, be recoverable by the aggregate Datatel Losses Purchaser Indemnified Parties, (ii) the Purchaser Indemnified Parties shall not be entitled to recover pursuant to Section 9.2(a)(i) (except in respect of breaches of any representation or warranty in Section 3.17(d)) until, excluding individual Datatel Losses or related Datatel Losses claims that are less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars Mini-Basket, the Losses incurred relating thereto exceed, in the aggregate, Six Hundred, Fifteen Thousand Dollars ($2,000,000615,000) (the “ThresholdBasket”), whereupon such indemnification and then Seller Guarantor shall be made by SunGard Data liable only with respect to the amount of extent that aggregate indemnified Losses exceed such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitationsamount, and (iii) in no event shall the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary aggregate liability of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement Seller Guarantor to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party Purchaser Indemnified Parties pursuant to Section 10.1(a9.2(a)(i) exceed Eight Million, Two Hundred Thousand Dollars ($8,200,000) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c“Cap”); provided, howeverthat the Cap shall be increased (A) to Sixteen Million, that such obligations Four Hundred Thousand Dollars ($16,400,000) (less any amounts recovered to indemnify and hold harmless shall not terminate which the Cap applies) with respect to indemnification for breaches of Specified Representations and (B) to Forty-One Million Dollars ($41,000,000) (less any item as amounts recovered to which the SunGard Indemnified Party Cap applies) with respect to indemnification for breaches of Section 3.18(c) or Datatel Indemnified Party, Section 3.18(d) that the Company had Knowledge of as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis date of such claim) to the Indemnifying Partythis Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (New Media Investment Group Inc.)
Certain Limitations. The indemnification provided for in Section 10.2 and Section 10.3 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Sellers shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer Indemnitees for indemnification under Section 10.2(a) until the aggregate Datatel amount of all Losses in respect of indemnification under this Agreement and Section 10.2(a) exceeds $100,000 (the Asset Purchase Agreement “Basket”), in which event Sellers shall only be required to pay or be liable for Losses in excess of the Basket. The aggregate amount of all Losses for which Sellers may be liable pursuant to Section 10.1(a10.2(a) shall not exceed fifteen percent (other than Section 10.1(a)(v)) and Section 10.1(a15%) of the Asset Purchase Agreement Price actually received by the Sellers (the “Cap”); provided that such limitation shall not apply to any such Losses (i) with respect to breaches of Company Fundamental Reps, for which the maximum amount recoverable by the Buyer Indemnitees shall be limited to the Purchase Price actually received by the Sellers and (ii) with respect to breaches of the Intellectual Property Reps, for which the maximum amount recoverable by the Buyer Indemnitees shall be limited to thirty percent (30%) of the Purchase Price actually received by the Sellers. The aggregate Liability of a particular Seller in excess respect of any Loss for which such Seller indemnifies the Buyer Indemnitees pursuant to Section 10.2 shall not exceed an amount equal to $1,775,000,000; provided that with respect to Datatel Losses the Purchase Price actually received by such Seller pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000this Agreement.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyer shall not be obligated liable to indemnify the Datatel Indemnified Parties Seller Indemnitees for indemnification under this Agreement pursuant to Section 10.1(a)(i10.3(a) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel all Losses (excluding individual Datatel in respect of indemnification under Section 10.3(a) exceeds the Basket, in which event Buyer shall only be required to pay or be liable for Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdBasket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 10.3(a) shall not exceed the Cap; provided that such limitation shall not apply to any such Losses with respect to breaches of Buyer Fundamental Reps, for which the maximum amount recoverable by any Seller Indemnitee shall be limited to the Purchase Price actually received by such Seller.
(c) The representations and warranties For purposes of calculating the SunGard Entitiesmonetary amount of Losses for which any Legal Action may be made against any Indemnifying Party, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth amount of any Losses corresponding to any inaccuracy in Sections 5.1 and 6.1 or breach of any representation or warranty shall survive indefinitelybe determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty, (ii) solely for purposes there shall be no duplication of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration recovery by reason of the applicable statute state of limitationsfacts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement (and no Indemnified Party will be entitled to indemnification or reimbursement under any provision of this Agreement for any amount to the extent such Indemnified Party or its Affiliate has received indemnification payments for or been reimbursed for such amount under any other provision of this Agreement or any other document executed in connection with this Agreement (i.e., no double recovery)) and (iii) such monetary amount shall be decreased to the representations extent of any amounts actually recovered by an Indemnified Party under applicable insurance policies. Each Indemnified Party agrees that it shall, and warranties set forth in Section 5.4(c)cause its Affiliates to, Section 5.20 and Section 5.21 shall survive until use commercially reasonable efforts to (x) make or cause to be made all reasonable claims for insurance under insurance policies that may be applicable to the one year anniversary of matter giving rise to the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing indemnification claim hereunder, and (iiy) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement mitigate any Losses after becoming aware of such Losses or any event or condition that could reasonably be expected to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsgive rise to any such Losses.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate Except with respect to an action for which specific performance is sought (and solely to the extent such action seeks such relief), each Party acknowledges and agrees that its sole and exclusive remedy with respect to all claims relating to any item as breach, inaccuracy, or nonfulfillment of any representation, warranty, covenant or agreement in this Agreement or otherwise relating to which the SunGard Indemnified transactions contemplated hereby shall be in accordance with, and limited by, the indemnification provisions set forth in this ARTICLE X. In furtherance of the foregoing, except with respect to Section 12.11, each Party or Datatel Indemnified Party, as the case may behereby waives, to be indemnified (eachthe fullest extent permitted under Law, an “Indemnified Party”) shall haveany and all rights, before the expiration claims and causes of the applicable survival periodaction for any breach of any representation, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) warranty, covenant, agreement or obligation set forth herein or otherwise relating to the Indemnifying Party.subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this ARTICLE X.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein Nothing in this Agreement shall be deemed to require any Sublessor Entity to indemnify any TowerCo Indemnitee for or in respect of any of the Real Estate Representations. Without limiting the generality of the foregoing, the sole remedies of TowerCo or TowerCo Parent in respect of a breach of any Real Estate Representation by any Sublessor Entity shall be to cause (i) such Sublessor Entity to continue to use reasonable efforts to cure such breach, as contemplated by Section 4.5, until the Final Closing Date, or (ii) the Site as to which such Real Estate Representation is breached to be, at the applicable Sublessor Entity's election, an Excluded Site or to defer the Closing of such Site to a later Closing Date, provided that the failure of any such deferred Site to become an Included Site on or prior to the contrary, SunGard Data Final Closing shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses constitute a default under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000or give TowerCo Parent or TowerCo any remedy.
(b) Notwithstanding anything contained herein to the contrarycontrary contained herein, SunGard Data no Sublessor Entity shall not be obligated to indemnify the Datatel Indemnified Parties have any obligation under this Agreement pursuant Section 13 to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only TowerCo Indemnitees with respect to the breach of representations, warranties, covenants or agreements by SBCW, unless, until and only to the extent that the aggregate of all TowerCo Indemnified Losses from all such breaches exceeds on a cumulative basis one percent (1%) of the aggregate amount of such Datatel Losses (excluding individual Datatel Losses all Rent having been paid to SBCW or related Datatel Losses less than any other Sublessor Entity under the Minimum Amount) in excess Sublease as of the Thresholddate on which the claim for indemnification arose (the "Deductible Amount"), and then only to the extent of such excess amount.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained Anything in this Agreement to the contrary notwithstanding, in no event shall not survive the Closing; provided that (i) the covenants and agreements contained any Sublessor Entity be liable under this Agreement for any indemnification obligation pursuant to this Section 13 in the Surviving Pre-Closing Covenants shall survive until the one year anniversary excess of 25% of the Closing and (iiaggregate amount of the Rent having been paid to SBCW or such Sublessor Entity under the SBCW Sublease on account of the Site(s) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until owned by such Sublessor Entity as of the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to on which the SunGard Indemnified Party or Datatel Indemnified Party, as claim for indemnification arose (the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party"Maximum Indemnification").
Appears in 1 contract
Certain Limitations. The liability of the Vendors or Buyers, as applicable, for claims under this Agreement shall be limited by the following:
(a) Notwithstanding anything contained herein to At any time after the contrarySurvival Date, SunGard Data (i) the Vendors shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses have no further obligations under this Agreement Article XII for breaches of representations and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) warranties of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that Vendors, except for Damages with respect to Datatel Losses pursuant which the Buyers Indemnitee has given the Vendor written notice prior to such date in accordance with Section 10.1(a)(i)12.3 above; and (ii) the Buyers shall have no further obligations under this Article XII for breaches of representations and warranties of the Buyers, SunGard Data shall not be obligated except for Damages with respect to indemnify which the Datatel Indemnified Parties for aggregate Datatel Losses Vendors Indemnitee has given the Buyers written notice prior to such date in excess of an amount equal to $177,500,000accordance with Section 12.3.
(b) Notwithstanding anything contained herein to the contrarycontrary herein, SunGard Data Buyers Indemnitees shall not be obligated entitled to indemnify the Datatel Indemnified Parties under this Agreement recover Damages from Vendors pursuant to Section 10.1(a)(i12.1(a) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the accumulated aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than amount of Damages shall exceed an amount which is the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) equivalent of E 150,000 (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c"VENDOR INDEMNIFICATION THRESHOLD"); provided, however, that at such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, time as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration aggregate amount of Damages in respect of the applicable survival periodindemnity obligations of Vendors shall exceed the Vendors Indemnification Threshold, previously made a claim by delivering a written notice Vendors shall thereafter indemnify any of the Buyers Indemnitees from all and against all Damage in excess of equivalent E 10,000.
(stating in reasonable detail the basis of such claimc) Notwithstanding anything to the Indemnifying Partycontrary herein, in the absence of fraud or willful breach of this Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Vendors in respect of any claims by the Buyers Indemnitees against Vendors pursuant to Section 12.1(a) for Damages suffered or incurred by any Buyers Indemnitee exceed the maximum amount of E 100,000,000.
(d) Notwithstanding anything to the contrary contained herein, any claim for indemnity made by any Buyer Indemnitee relating to Taxes is subject to the condition that :
Appears in 1 contract
Sources: Framework Transaction Agreement (Elbit Medical Imaging LTD)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 will be subject to the following limitations:
(a) Notwithstanding anything contained herein EWI and EWD will not be liable to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties Buyer Indemnitees for aggregate Datatel Losses indemnification under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a8.02(a) (other than or under Section 10.1(a)(v)) and Section 10.1(a8.02(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel any representations or warranties of EWI or the Company hereunder or EWD under the Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement and excluding Section 3.15(c) and (d) which, for the avoidance of doubt, will be subject to the Basket) until the aggregate amount of such Losses pursuant to Section 10.1(a)(iexceeds $75,000 (the “Basket”), SunGard Data shall not in which event EWI and EWD will only be obligated required to indemnify the Datatel Indemnified Parties pay or be liable for aggregate Datatel all such Losses in excess of an amount equal to $177,500,000the Basket.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not The aggregate amount of all Losses for which EWD and EWI will be obligated to indemnify the Datatel Indemnified Parties under this Agreement liable pursuant to Section 10.1(a)(i8.02(a) and Section 8.02(a) of the Asset Purchase Agreement will not exceed the following: (i) with respect to any individual Datatel Loss representations or series warranties of related Datatel Losses EWI or the Company hereunder or of less EWD under the Asset Purchase Agreement other than seventy-five thousand dollars the Special Representations (as defined herein and in the Asset Purchase Agreement), $75,000) 2,500,000 (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “ThresholdCap”), whereupon such indemnification shall be made by SunGard Data only (ii) with respect to the amount of such Datatel Losses Special Representations (excluding individual Datatel as defined herein and in the Asset Purchase Agreement), $17,000,000 and (iii) with respect to Post-Closing Events hereunder and all “Post-Closing Events” pursuant to the Asset Purchase Agreement, $750,000. In no event shall EWI and EWD be liable to Buyer Indemnitees for any Losses or related Datatel Losses less than other claims relating to or arising out of this Agreement or the Minimum Amount) Transaction Documents in excess of the Threshold$17,000,000.
(c) The representations Buyer will not be liable to EWI Indemnitees for indemnification under Section 8.03(a) and warranties BHEP will not be liable to “EWD Indemnitees” for indemnification under Section 8.03(a) of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement with respect to be performed after any representations or warranties of Buyer hereunder or BHEP under the Closing shall survive Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement) until the date aggregate amount of all such Losses exceeds the Basket, in which event Buyer will be required to pay or dates explicitly specified therein or, if not so specified, until performed be liable for all such Losses in accordance with their termsexcess of the Basket.
(d) The obligations to indemnify and hold harmless a Party aggregate amount of all Losses for which Buyer will be liable pursuant to Section 10.1(a8.03(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates hereunder and for which BHEP will be liable pursuant to Section 10.2(c); provided, however, that such obligations to indemnify 8.03(a) of the Asset Purchase Agreement (i) other than the Special Representations (as defined herein and hold harmless shall in the Asset Purchase Agreement) will not terminate exceed the Cap and (ii) with respect to any item the Special Representations (as to which defined herein and in the SunGard Indemnified Party or Datatel Indemnified PartyAsset Purchase Agreement), as the case may be, to be indemnified will not exceed $17,000,000.
(each, an “Indemnified Party”e) shall have, before the expiration The determination of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail amount of any Losses for purposes of this Article VIII will take into account the basis amount of such claim) insurance proceeds payable with respect thereto pursuant to the Indemnifying Partyany insurance policy.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein The obligations of Vulcan to indemnify pursuant to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement First Vulcan Indemnity pursuant to Section 10.1(a) 8.1 of this Article shall accrue only if the aggregate Haye▇ ▇▇▇ses for all matters indemnifiable under Section 8.1 exceed One Hundred Thousand Dollars (other than Section 10.1(a)(vUS $100,000)) , and Section 10.1(a) of the Asset Purchase Agreement then Vulcan shall be liable only for Haye▇ ▇▇▇ses in excess of an such amount, subject to the maximum amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated described below. The obligations of Vulcan to indemnify the Datatel Indemnified Parties for Haye▇ ▇▇▇emnitees under Section 8,1 shall not exceed the aggregate Datatel Losses of Two Million Five Hundred Thousand U.S. Dollars (US $2,500,000). The limitations described in excess of an amount equal this Section 8.6(a) shall not apply to $177,500,000the Second Vulcan Indemnity as described in Section 8.2.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement No claim for indemnification pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss 8.1, 8.2, 8.3 or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall 8.4 may be made unless written notice of such claim, accompanied by SunGard Data only a description of the particular facts involved and the provisions of this Agreement implicated, is delivered to the indemnifying party ("Indemnification Notice"). For purposes of the First Vulcan Indemnity pursuant to Section 8.1, the Indemnification Notice must be received on or before eighteen (18) months from the Effective Time; provided, however, no 18 month time limit shall apply to indemnification claims pursuant to Indemnification Notices provided to the indemnifying party before the expiration of such 18 month period where such claim(s) shall not have been fully resolved by such expiration date; and provided further, no such term limit shall apply with respect to the amount of such Datatel Losses (excluding individual Datatel Losses indemnification provided pursuant to Sections 8.2, 8.3 or related Datatel Losses less than the Minimum Amount) in excess of the Threshold8.4.
(c) The representations and warranties amount of Vulcan's indemnification obligation in respect of any Haye▇ ▇▇▇s shall be reduced by the SunGard Entitiesamount of any insurance proceeds received by Haye▇, the ▇▇e Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in or the Surviving Pre-Closing Covenants shall survive until the one year anniversary Corporation in respect of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termssuch Loss.
(d) The obligations amount of Vulcan's indemnification obligation hereunder shall be reduced by the amount determined to indemnify and hold harmless a Party pursuant be owing to Vulcan by Haye▇ ▇▇▇suant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, 9.12 of that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration certain Preferred Stock Purchase Agreement of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partyeven date herewith.
Appears in 1 contract
Sources: Merger Agreement (Hayes Corp)
Certain Limitations. The party making a claim under this Article VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VIII is referred to as the “Indemnifying Party”. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except in the cases of fraud, if Seller or any Shareholder is the Indemnifying Party, the Indemnifying Party shall not be liable to the Indemnified Party for indemnification under Section 8.02(a)(i) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a)(i) exceeds $7,000,000 (the “Deductible”), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible.
(b) Except in the cases of fraud, if Buyer is the Indemnifying Party, the Indemnifying Party shall not be liable to the Indemnified Party for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Deductible, in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible.
(c) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until no event will the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount liability of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) Seller to any Indemnified Party and Buyer pursuant to this Agreement exceed the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, Purchase Price actually received by Seller or (ii) solely for purposes of Section 7.4(d)(i)(D), the representations any Shareholder to any Indemnified Party and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration Buyer pursuant to this Agreement exceed such Shareholder’s Pro Rata Share of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsPrice actually received by Seller.
(d) The obligations From and after the Closing for purposes of determining the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty and covenant in this Agreement and each certificate or document delivered pursuant hereto shall be read without regard and without giving effect to indemnify the term “material” or any similar qualifier, as if such words and hold harmless a surrounding related words (e.g., “reasonably be expected to” and similar restrictions and qualifiers) were deleted from such representation and warranty or covenant.
(e) Notwithstanding anything to the contrary in this Agreement, but subject to Sections 2.05(f) and 8.07, in no event will Seller or any Shareholder be liable to any Indemnified Party hereunder and Buyer shall solely look to the R&W Insurance Policy for coverage of any Losses regardless of whether such policy provides coverage for such Losses, except in the cases of fraud.
(f) Payments by an Indemnifying Party pursuant to Section 10.1(a) 8.02 or Section 8.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds (other than Section 10.1(a)(vthe R&W Insurance Policy) and any indemnity, contribution or other similar payment received or reasonably expected to be received by the Indemnified Party (or the Company) in respect of any such claim (net of any reasonable costs or expenses incurred by the Indemnified Party (or the Company) in collecting such amounts). The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement.
(g) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates Payments by an Indemnifying Party pursuant to Section 10.2(c); provided8.02 or Section 8.03 in respect of any Loss shall be reduced by an amount equal to any Tax benefit realized or reasonably expected to be realized as a result of such Loss by the Indemnified Party.
(h) Notwithstanding anything contained in this Agreement to the contrary, however, that such obligations no Indemnified Party shall have any right to indemnify and hold harmless shall not terminate indemnification under this Article VIII with respect to any item as Losses to which the SunGard extent such Losses (i) are included on, or is a liability accrued for on or reserved or reflected in, the Balance Sheet; (ii) arise out of changes after the Closing Date in applicable Law; (iii) are previously reflected in the Purchase Price adjustments under Article II; or (iv) are duplicative of Losses that have previously been recovered hereunder.
(i) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss, including pursuing recovery under the R&W Insurance Policy, upon becoming aware of any event or Datatel Indemnified Partycircumstance that would be reasonably expected to, as the case may beor does, to be indemnified (eachgive rise thereto, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) including incurring costs only to the Indemnifying Partyminimum extent necessary to remedy the breach that gives rise to such Loss.
(j) Notwithstanding anything contained in this Agreement to the contrary, Buyer’s rights to indemnification hereunder shall not be limited in cases of fraud in any respect.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein to the contrarycontrary herein, SunGard Data (i)(x) any claim by a Parent Indemnitee against any Equityholder Indemnifying Party arising under Section 7.1(a) and (y) any claim by a Company Indemnitee against any Parent Indemnifying Party arising under Section 7.2(a) shall not be obligated payable by the applicable Indemnifying Party only in the event and to the extent that the accumulated amount of the claims in respect of such Indemnifying Party’s obligations to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement shall exceed $3,000,000 in the aggregate (the “Indemnification Threshold”), and (ii) at such time as the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) aggregate amount of claims in respect of the Asset Purchase Agreement indemnity obligations of such party for breaches of representations and warranties shall exceed the Indemnification Threshold, such party shall thereafter be liable on a dollar-for-dollar basis for the amount of all claims for breaches of representations and warranties in excess of the Indemnification Threshold up to, but in no event exceeding, an amount equal to $1,775,000,000the Cap; provided provided, however, that the Indemnifying Parties shall have no obligation to indemnify a Parent Indemnitee or Company Indemnitee, as applicable, with respect to Datatel Losses pursuant to Section 10.1(a)(iindividual Damages of less than $250,000 each (the “Mini Basket”), SunGard Data and such Damages shall not be obligated counted toward the Indemnification Threshold; provided, further, that the Indemnification Threshold and the Mini Basket shall not apply to indemnify Damages to the Datatel Indemnified Parties for aggregate Datatel Losses in excess extent that the same arise out of an amount equal or relate to $177,500,000a breach of any of the Fundamental Representations and Warranties or fraud.
(b) Notwithstanding anything contained herein Except with respect to claims that are brought based upon a breach of the contraryFundamental Representations and Warranties or fraud, SunGard Data shall not be obligated to indemnify the Datatel Indemnified cumulative indemnification obligations of the Equityholder Indemnifying Parties under this Agreement for indemnification pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”7.1(a) and unless (c) of this Agreement, on the one hand, and until the aggregate Datatel Losses Parent Indemnifying Parties for indemnification pursuant to Section 7.2(a) and (excluding individual Datatel Losses or related Datatel Losses less than c) of this Agreement, on the Minimum Amount) subject to such indemnification collectively other hand, shall not exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect Cap. Notwithstanding anything to the amount contrary set forth in this Agreement, an Equityholder Indemnifying Party’s maximum aggregate liability in respect of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess claims for indemnification for breaches of the ThresholdFundamental Representations and Warranties shall not, absent fraud, exceed the amount equal to that Equityholder Indemnifying Party’s Pro Rata Portion multiplied by the Final Purchase Price.
(c) The representations and warranties cumulative indemnification obligations of the SunGard Entities, Equityholders under Section 7.1(a) and (c) (other than to the Company and the Datatel Entities contained in Articles IV, V and VI extent arising out of this Agreement shall not survive the Closing; provided that (i) or related to breach of any of the Fundamental Representations and Warranties or fraud) shall be recoverable solely from the representations Indemnification Escrow Amount (as shall be reduced from time to time to reflect payments, if any, made from time to time in accordance with the terms and warranties set forth conditions of this Agreement and the Escrow Agreement). All payments made from the Indemnification Escrow Amount in Sections 5.1 and 6.1 respect of indemnification claims, other than those based upon breaches of covenants made by an Equityholder, shall survive indefinitely, (ii) solely for purposes be deemed to be allocated among the Equityholders in accordance with their Pro Rata Portion. All payments made from the Indemnification Escrow Amount in respect of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration indemnification claims related to breaches of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained made by any Equityholder in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement be deemed to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsallocated entirely to such Equityholder.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) Escrow Agreement shall provide that all remaining portions of the Indemnification Escrow Amount (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)less the balance of then pending indemnity claims thereunder) shall terminate when be released to the applicable representationStockholders’ Representatives, warranty or covenant terminates pursuant for the benefit of the Stockholders, and to Section 10.2(c)the Surviving Corporation, for the benefit of the Effective Time Option Holders, on the Indemnification Escrow Release Date; provided, however, that the Escrow Agreement shall also provide that, in the event any amount is required to be paid as provided in this Section 7.5(d) after the fifth (5th) anniversary of the Closing Date, such obligations amount shall be paid solely to indemnify the Stockholders’ Representatives, for the benefit of the Stockholders, and hold harmless no amount of such payment shall not terminate be made to the Effective Time Option Holders.
(e) Nothing in this Agreement will prevent any party from bringing an action based upon fraud by any other party.
(f) Notwithstanding anything to the contrary contained in this Agreement, there shall be no right to indemnification from any Equityholder Indemnifying Party under this Agreement with respect to any item to the extent of the amount at which such item is reflected as a liability in the determination of the Closing Working Capital pursuant to Section 2.9 hereof.
(g) To the fullest extent permitted by applicable Law, and except only for (i) any fraud by the Company, the Equityholders, Parent or Merger Sub, (ii) in the event a party hereto seeks to obtain specific performance pursuant to Section 10.11, or (iii) matters covered by Section 2.9, the indemnification provisions provided for in this Article VII will be the exclusive remedy for any breach of any representation, warranty, covenant, or agreement contained in this Agreement. Except as set forth in this Section 7.5(g), the Company, the Equityholders, the Company Indemnitees, the Equityholder Indemnifying Parties, Parent, Merger Sub and the Parent Indemnitees shall have no other or further right or remedy under this Agreement, whether in contract, tort or otherwise, or any right of rescission with respect to such matters, all of which are hereby waived by the SunGard Company (on behalf of the Company Indemnitees) and Parent (on behalf of the Parent Indemnitees) or Merger Sub.
(h) The Equityholder Indemnifying Parties will have no right of contribution from any of the Parent Indemnitees with respect to any Damages claimed by a Parent Indemnitee.
(i) No Equityholder other than the Stockholders’ Representatives has any individual right to assert any claims for indemnification under this Article VII. Any and all claims for indemnification under this Article VII of the Equityholders may be brought only by the Stockholders’ Representatives (or their successor).
(j) To the extent required by Law, each Indemnified Party or Datatel shall use its commercially reasonable efforts to mitigate any Damages which are the subject of claims hereunder, provided, that the failure of any Indemnified Party, as Party to mitigate any Damages shall not relieve the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration Indemnifying Party of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) its obligations hereunder except to the Indemnifying Partyextent it shall have been materially prejudiced by such failure.
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Certain Limitations. Notwithstanding anything otherwise provided in Section 10 or otherwise pursuant to this Agreement:
(a) Notwithstanding anything contained herein Except for Losses arising as a result of Actual Fraud, as to which the contrary, SunGard Data limitations of this Section 10.6(a) shall not be obligated apply, KEG will not have any obligation to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement hold harmless PHI pursuant to this Section 10.1(a10 in respect of Losses arising under Section 10.1 unless and until the amount of the aggregate Losses claimed by PHI exceeds One Hundred Twenty-Five Thousand Two Hundred Forty-Five U.S. Dollars ($125,245) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i“Basket”), SunGard Data whereupon KEG shall not be obligated to indemnify indemnify, defend, protect and hold harmless the Datatel Indemnified Parties other party for aggregate Datatel the amount of all Losses in excess of an amount equal the Basket, and KEG’s aggregate liability in respect of claims for indemnification pursuant to Section 10.1 shall not exceed Six Million Two Hundred Sixty-Two Thousand Two Hundred Thirty-Five U.S. Dollars ($177,500,0006,262,235).
(b) Notwithstanding anything contained herein Except for Losses arising as a result of Actual Fraud, as to which the contrary, SunGard Data limitations of this Section 10.6(b) shall not be obligated apply, PHI will not have any obligation to indemnify the Datatel Indemnified Parties under this Agreement and hold harmless KEG pursuant to this Section 10.1(a)(i) with 10 in respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and arising under Section 10.2 unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of all such Datatel Losses (excluding individual Datatel incurred or suffered by KEG exceeds the Basket at which point PHI will indemnify KEG for all Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdBasket, and PHI’s aggregate liability in respect of claims for indemnification pursuant to Section 10.2 will not exceed the Purchase Price.
(c) The representations and warranties amount of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement any Losses for which an Indemnifying Party shall not survive the Closing; provided that be liable hereunder shall be determined after deducting therefrom (ia) the Fundamental Representations amount of any insurance proceeds actually received from a third-party insurer and the representations any other amounts actually recovered from a third party pursuant to indemnification or otherwise, in each case net of costs and warranties set forth in Sections 5.1 expenses (including collection expenses, premium increases, retro-premiums and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(Dany retention amounts), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iiib) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary amount of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained any net cash tax benefit actually realized as a result of such Loss in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date current or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsany prior taxable year.
(d) The obligations Except with respect to indemnify injunctive and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when non-monetary equitable relief, PHI and KEG each acknowledge and agree that, from and after the applicable representationClosing, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify their sole and hold harmless shall not terminate exclusive remedy with respect to any item as and all claims for money damages pursuant to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to this Agreement shall be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) pursuant to the Indemnifying Partyprovisions of this Section 10.
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Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data 9.3.1 Seller shall not be obligated required to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) Buyer Indemnitees with respect to any individual Datatel claim for indemnification pursuant to Section 9.1.1 (excluding any such claim with respect to a breach of any Seller Fundamental Representation with respect to which the limits set forth in clauses (i) and (ii) shall not apply): (i) for any Loss (or series Losses relating to the same facts and circumstances) if the amount of related Datatel Losses of such Loss is less than seventy-five thousand dollars $100,000 ($75,000a “De Minimis Loss”); (ii) (the “Minimum Amount”) and unless and until the aggregate Datatel amount of all such Losses (excluding individual Datatel Losses or related Datatel Losses less than any De Minimis Loss) exceeds the Minimum Deductible Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification in which case Seller shall only be made by SunGard Data only with respect to responsible for the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the ClosingDeductible Amount; provided that the aggregate liability of Seller to Buyer Indemnitees under Section 9.1.1 (excluding liability with respect to any breach of any Seller Fundamental Representation) shall in no event exceed the Warranty Cap. The aggregate liability of Seller to Buyer Indemnitees under Section 9.1 shall in no event exceed the Cap.
9.3.2 Buyer shall not be required to indemnify Seller Indemnitees with respect to any claim for indemnification pursuant to Section 9.2.1 (excluding any such claim with respect to a breach of any Buyer Fundamental Representation with respect to which the limits set forth in clauses (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants shall not apply): (i) for any De Minimis Loss; and agreements contained in this Agreement (ii) unless and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein oraggregate amount of all such Losses (excluding any De Minimis Loss) exceeds the Deductible Amount, if not so specified, until performed in accordance with their terms.
which case Buyer shall only be responsible for the amount of such Losses in excess of the Deductible Amount; provided that the aggregate liability of Buyer to Seller under Section 9.2.1 (d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate excluding liability with respect to any item Buyer Fundamental Representation) shall in no event exceed the Warranty Cap. The aggregate liability of Buyer to Seller Indemnitees under Section 9.2 shall in no event exceed the Cap.
9.3.3 Buyer shall not be entitled to indemnification for those portions of any Losses: (i) other than in connection with Section 9.1.3, reserved or accrued on the financial statements or master book referred to in Section 3.7 in a manner that permits reasonable determination as to which the SunGard portion of such Loss reserved or accrued; (ii) that have arisen as a result of any act or omission by Buyer or any of its Affiliates or Representatives on or after the Closing Date (including resulting from any change in their respective accounting principles, practices or methodologies and any Losses arising from any breach of its obligations under this Agreement), provided that the foregoing shall not preclude indemnification under Section 9.1.3 except to the extent that any Covered Taxes that would otherwise have been indemnifiable thereunder result from an action of Buyer that caused Taxes (other than Taxes described in clause (viii) of the definition of Covered Taxes) that otherwise would have been in respect of a tax period beginning after the Closing Date (or the portion of the Straddle Period beginning after the Closing Date) to be a Covered Tax (except if such action, in Buyers’ reasonable discretion, was required by applicable Law); or (iii) that were taken into account (a) in respect of Taxes, in the calculation of Quasi-Indebtedness or Working Capital for purposes of determining the Final Purchase Price (except to the extent resulting from a breach of Section 5.1.1(e)) or (b) in respect of any other amount, in any adjustment to the Final Purchase Price pursuant to Section 2.4. For the avoidance of doubt, no Indemnified Party or Datatel Indemnified Party, as shall be compensated more than once for the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partysame Loss.
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Certain Limitations. (ai) Seller will not have any Liability under Section 3.3(c)(i) for any indemnification (A) for any individual Claim unless the amount with respect to such Claim exceeds $[***] (the “De Minimis Threshold”), and (B) until and unless the aggregate amount of all Claims for which Claim Notices are delivered by Buyer that exceed the De Minimis Threshold exceeds an amount equal to [***]% of the Purchase Price (the “Indemnity Deductible”), after which point Seller will only be liable for such indemnification to the extent such Claims that exceed the De Minimis Threshold exceed the Indemnity Deductible; provided, however, that the limitations on Seller’s Liability in this Section 3.3(h)(i) will not apply to: (x) Seller’s Liability for breaches of its Fundamental Representations or the representations and warranties in Section 5.1(g); (y) Seller’s Liability for breaches of any covenant to be performed at or following the Closing, and (z) Seller’s Liability under Section 3.3(c)(iii) for the Retained Obligations, Section 3.3(c)(iv) for any Seller Taxes and Section 3.3(c)(v) for the Excluded Assets.
(ii) Notwithstanding anything contained herein to the contrarycontrary contained in this Agreement, SunGard Data shall Seller will not be obligated required to indemnify Datatel Indemnified Parties Buyer for aggregate Datatel Losses Liabilities under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a3.3(c)(i) (other than or Section 10.1(a)(v)3.3(c)(ii) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess 10% of the Threshold.
Purchase Price; provided, however, that the limitations on Seller’s Liability in this Section 3.3(h)(ii) will not apply to (cA) The representations and warranties Seller’s Liability for breaches of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the its Fundamental Representations and the representations and warranties in Section 5.1(g), (B) Seller’s Liability for breaches of any covenant to be performed at or following the Closing, and (C) Seller’s Liability under Section 3.3(c)(iii) for the Retained Obligations, Section 3.3(c)(iv) for any Seller Taxes and Section 3.3(c)(v) for the Excluded Assets.
(iii) Notwithstanding anything to the contrary contained in this Agreement, Seller’s aggregate Liabilities under this Agreement will not exceed the Purchase Price.
(iv) The obligations set forth in Sections 5.1 3.3(b) and 6.1 shall survive indefinitely3.3(c) will not apply to (A) any amount that was taken into account as an adjustment to the Purchase Price pursuant to the provisions hereof, (iiB) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained except as otherwise provided in this Agreement shall not survive Agreement, any Party’s costs and expenses with respect to the Closing; provided that (i) the covenants negotiation and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary consummation of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify purchase and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration sale of the applicable survival periodAssets, previously made and (C) any amount that would result in a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partydouble recovery.
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Certain Limitations. (a) Notwithstanding anything contained herein to the contrarycontrary contained in this Agreement, SunGard Data shall not be obligated to indemnify Datatel the rights of the Buyer Indemnified Parties for aggregate Datatel Losses and the Seller Indemnified Parties to indemnification under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data Article 14 shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.limited as follows:
(bi) Notwithstanding anything contained herein to the contrary, SunGard Data shall not no Claim Notice for indemnification may be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) provided with respect to any individual Datatel Loss Claim for breach of a representation, warranty, covenant or series of related Datatel Losses of less than seventy-five thousand dollars other agreement in this Agreement (x) beyond the survival period specified in Section 14.2(c) or (y) prior to the Closing;
(ii) Seller’s aggregate liability for all claims made under Section 14.2(a) shall be limited to and shall not $75,0009,000,000;
(iii) Seller shall have liability for claims made under Section 14.2(a)(iii) only to the extent that such claims in the aggregate exceed a deductible amount equal $536,250 (the “Minimum AmountDeductible”);
(iv) and unless and until EXCEPT AS OTHERWISE PROVIDED HEREIN, THE INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 14.2 SHALL BE WITHOUT REGARD TO THE INDEMNIFIED PARTY’S SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT;
(v) the aggregate Datatel Losses (excluding individual Datatel Losses provisions of this Section 14.2 shall apply in such a manner as not to give duplicative effect to any item of adjustment. If there has been an adjustment to the Purchase Price pursuant to Section 2.2 or related Datatel Losses less than Article 12 for any Loss, there shall not be any charge against the Minimum Amount) subject Deductible for any such Loss that gave rise to such adjustment in the Purchase Price pursuant to Section 2.2 or Article 12 to the extent of the amount of such Loss given effect in such adjustment to the Purchase Price;
(vi) the amount of any Losses for which indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification is provided under this Section 14.2 shall be made computed net of any insurance or other proceeds actually received by SunGard Data only the Indemnified Party in connection with such Losses. Each of the Buyer Indemnified Parties and each of the Seller Indemnified Parties shall pursue in good faith claims under any applicable insurance policies and against other third parties who may reasonably be expected to be responsible for such Losses; and
(vii) upon payment of any Losses with respect to a Claim pursuant to this Section 14.2, the Indemnifying Party shall be subrogated to the extent of such payment (and to recover costs or expenses incurred by the Indemnifying Party in enforcing such recovery rights against such Person) to the rights of the Indemnified Party against any Person with respect to the amount subject matter of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the ClosingClaim. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, shall assign such rights to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to and otherwise reasonably cooperate with the Indemnifying Party, at the cost and expense of the Indemnifying Party, to pursue any claims against or otherwise recover amounts from, any Person liable or responsible for any Losses for which indemnification has been received pursuant to this Agreement.
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Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data The Stockholders shall not be obligated required to indemnify Datatel the Parent Indemnified Parties for those portions of any Damages (i) that were specifically deducted in determining any adjustments pursuant to Article III or (ii) to the extent resulting primarily from any material breach of the Parent’s, Merger Sub’s or Surviving Corporation’s obligations under this Agreement. Parent shall not be required to cause GDC America, Inc. to indemnify the Stockholder Indemnified Parties for those portions of any Damages (x) that were specifically deducted in determining any adjustments pursuant to Article III or (y) to the extent resulting primarily from any material breach of the Company’s, any Stockholder’s or the Stockholders’ Representative’s obligations under this Agreement. No Person shall be indemnified more than once for the same Damages.
(b) Except in the case of Fraud, the Stockholders’ aggregate Datatel Losses liability (i) under Section 9.1(a)(i) (other than with respect to the Fundamental Representations and Warranties and the Tax Representations) shall not exceed the available funds within the Indemnification Escrow Fund and (ii) under Section 9.1(a)(viii) shall not exceed the total available funds within the Indemnification Escrow Fund and the Special Indemnification Escrow Fund.
(c) Except in the case of Fraud, ▇▇▇▇▇▇’s and GDC America, Inc.’s aggregate liability under Section 9.2(a), collectively, shall not exceed $[***].
(d) Except in the case of Fraud, the aggregate liability of each Stockholder under this Agreement and the Asset Ancillary Agreements shall not exceed the portion of the Purchase Price actually received by such Stockholder.
(e) Except in the case of Fraud, the aggregate liability of Parent and GDC America, Inc. under this Agreement pursuant shall not exceed the Purchase Price.
(f) Any amounts owed by the Stockholders for indemnification to the Parent Indemnified Parties under Section 10.1(a9.1(a)(i) (other than with respect to the Fundamental Representations and Warranties and the Tax Representations) shall be exclusively satisfied as follows: (i) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a joint and several basis by the Stockholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted and (ii) second, against the R&W Policy; provided that, in the case of any Fraud, the Parent Indemnified Parties shall not be required to comply with the limitation contained in this clause (f).
(g) Any amounts owed by the Stockholders for indemnification to the Parent Indemnified Parties under Section 10.1(a)(v)9.1(a)(i) (solely with respect to the Fundamental Representations and Warranties and the Tax Representations) and Section 10.1(a9.1(a)(vii) shall be exclusively satisfied as follows: (i) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a joint and several basis by the Stockholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted, (ii) second, against the Asset Purchase Agreement R&W Policy and, after the coverage limit under the R&W Policy has been reached, (iii) third, directly against the Stockholders on a several, and not joint, liability basis in excess accordance with their Pro Rata Portion to the extent the Parent Indemnified Parties’ aggregate Damages have exceeded the R&W Policy limit; provided that, in the case of any Fraud, the Parent Indemnified Parties shall not be required to comply with the limitation contained in this clause (g).
(h) Any amounts owed by the Stockholders for indemnification to the Parent Indemnified Parties under Section 9.1(a)(ii)-(vi) shall be exclusively satisfied as follows (x) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a joint and several basis by the Stockholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted, (y) second as a payment by the Escrow Agent from the Special Indemnification Escrow Fund (on a joint and several basis by the Stockholders to the extent of such funds) and, after such Special Indemnification Escrow Fund has been exhausted, (z) third, directly against the Stockholders on a several, and not joint, liability basis in accordance with their Pro Rata Portion to the extent the Parent Indemnified Parties’ aggregate Damages have exceeded both the available funds in the Indemnification Escrow Fund and the Special Indemnification Escrow Fund; provided that, in the case of any Fraud, the Parent Indemnified Parties shall not be required to comply with the limitation contained in this clause (h).
(i) Any amounts owed by the Stockholders for indemnification to the Parent Indemnified Parties under Section 9.1(a)(viii) shall be exclusively satisfied as follows: (i) first, as a payment by the Escrow Agent from the Special Indemnification Escrow Fund (on a joint and several basis by the Stockholders to the extent of such funds) and, after such Special Indemnification Escrow Fund has been exhausted and (ii) second, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a joint and several basis by the Stockholders to the extent of such funds); provided that, in the case of any Fraud, the Parent Indemnified Parties shall not be required to comply with the limitation contained in this clause (i).
(j) Any amounts owed by a Stockholder for indemnification to the Parent Indemnified Parties under Section 9.1(b) shall be exclusively satisfied directly against such Stockholder.
(k) Any indemnity payment made by the Stockholders to any Parent Indemnified Party, on the one hand, or by Parent or GDC America, Inc. to any Stockholder Indemnified Party, on the other hand, pursuant to this Article IX shall be reduced (i) by an amount equal to $1,775,000,000; provided that any insurance proceeds actually received by such indemnified party in respect of such claim (other than proceeds received under the R&W Policy with respect to Datatel Losses pursuant claims subject to Section 10.1(a)(ithe Initial Retention (as defined in the R&W Policy)) minus (x) any out-of-pocket expenses (including reasonable and documented attorneys’ fees and expenses) relating to the recovery of such proceeds and (y) any Taxes incurred as a result of such recovery, SunGard Data shall not and (ii) by the amount of any actual reduction in cash Taxes paid by Parent or any of its Affiliates (including, after the Closing, the Surviving Corporation and its Subsidiaries) resulting from the Damages giving rise to such indemnity payment which reduction was actually realized in the taxable year in which such Damages were incurred (as determined by Parent in its reasonable discretion, with such determination to be obligated explained to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses Stockholders’ Representative in excess of an amount equal to $177,500,000writing).
(bl) Each of the Parent Indemnified Parties and Stockholder Indemnified Parties shall take all commercially reasonable steps to mitigate any Damages upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto. The reasonable costs and expenses of mitigation hereunder shall constitute indemnifiable Damages under this Agreement.
(m) Notwithstanding anything contained herein to the contrarycontrary set forth in this Agreement, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) in no event shall any indemnifying party be liable to any indemnified party for any punitive, incidental, consequential, special, or indirect Damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitelybreach or alleged breach of this Agreement, (ii) solely for purposes or diminution of Section 7.4(d)(i)(D)value or any Damages based on any type of multiple, the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration arising from breaches of any covenants or other obligations of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements Company contained in this Agreement shall not survive the Closing; provided that or any Ancillary Agreement (iother than Specified Offer Letters) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The a Person’s indemnification obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) 9.1 or Section 10.1(b) 9.2 (other than Section 10.1(b)(iii)for the purposes of determining the existence of any inaccuracy or breach of any representation and warranty and calculation of the Damages attributable to such inaccuracy or breach) shall terminate when the applicable representation, be determined without giving effect to any qualification or exception with respect to “material,” “materiality,” “materially,” “Material Adverse Effect” or similar language with respect to materiality contained in any representation or warranty or covenant terminates pursuant to Section 10.2(c)set forth in Article IV; provided, however, that such obligations qualifications will not be disregarded with respect to indemnify Sections 4.6(a) and hold harmless (b) and the definition of “Material Contract”.
(n) The waiver of any condition based upon the accuracy of any representation or warranty, or on the performance of or compliance or non-compliance with any covenant or obligation, will not affect the right to indemnification, compensation or other remedy based upon such representations, warranties, covenants and obligations.
(o) The right to indemnification compensation or other remedy based upon the representation, warranties, covenant or obligation contained in this Agreement (or any certificate or document delivered pursuant hereto) will not be affected by any investigations (including any environmental investigation or assessment) conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with any such representation, warranty, covenant or obligation.
(p) Each Stockholder hereby agrees that (i) the availability of indemnification of the Parent Indemnified Parties under this Article IX shall be determined without regard to any right to indemnification, advancement, contribution or reimbursement that such Stockholder may have from the Company or any of its Subsidiaries (whether such rights may arise from or pursuant to applicable Law, Contract, the Organizational Documents of the Company or any of its Subsidiaries or otherwise), and (ii) such Stockholder shall not terminate be entitled to any indemnification, advancement, contribution or reimbursement from Parent, the Company or any Subsidiary of the Company, or any of their respective Affiliates for amounts for which Parent Indemnified Parties would be entitled to indemnification under this Article IX (determined without regard to any thresholds, deductibles, caps, survival periods or other limitations).
(q) Notwithstanding anything in this Article IX to the contrary, if a claim may be characterized in multiple ways in accordance with this Article IX such that such claim may or may not be subject to different caps, time limitations and other limitations depending on such characterization, then an indemnified party shall have the right to characterize such claim in a manner that maximizes the recovery and time to assert claims permitted in accordance with this Article IX, and may assert the claim under multiple bases for recovery hereunder; provided, however, that the foregoing shall not be interpreted to allow, and no indemnified party shall be entitled to, double recovery for the same claim.
(r) Notwithstanding the foregoing provisions of this Article IX, the Stockholders shall not be required to provide indemnification for Taxes hereunder (or Damages related thereto) to the extent (i) such Taxes result from an action not in the ordinary course of business and not contemplated by this Agreement taken by Parent, the Surviving Corporation, or any of their respective Affiliates, taken on the Closing Date after the Closing which directly or indirectly creates an adverse Tax consequence in or with respect to any item Pre-Closing Tax Period; or (ii) such Taxes that were included as to which the SunGard Indemnified Party a liability in Closing Working Capital or Datatel Indemnified Partyin Company Transaction Expenses or Closing Indebtedness, in each case as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made finally determined and actually resulting in a claim by delivering a written notice (stating in reasonable detail the basis of such claim) reduction to the Indemnifying PartyMerger Consideration received by the Stockholders.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Gambling.com Group LTD)
Certain Limitations. Notwithstanding anything otherwise provided in Section 10 or otherwise pursuant to this Agreement:
(a) Notwithstanding anything contained herein Except for Losses arising as a result of Actual Fraud, as to which the contrary, SunGard Data limitations of this Section 10.6(a) shall not be obligated apply, KCCO will not have any obligation to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement hold harmless PHIL pursuant to this Section 10.1(a10 in respect of Losses arising under Section 10.1 unless and until the amount of the aggregate Losses claimed by PHIL exceeds Five Hundred Sixteen Thousand Five U.S. Dollars ($516,005) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i“Basket”), SunGard Data whereupon KCCO shall not be obligated to indemnify indemnify, defend, protect and hold harmless the Datatel Indemnified Parties other party for aggregate Datatel the amount of all Losses in excess of an amount equal the Basket, and KCCO’s aggregate liability in respect of claims for indemnification pursuant to Section 10.1 shall not exceed Twenty-Five Million Eight Hundred Thousand Two Hundred Sixty-Six U.S. Dollars ($177,500,00025,800,266).
(b) Notwithstanding anything contained herein Except for Losses arising as a result of Actual Fraud, as to which the contrary, SunGard Data limitations of this Section 10.6(b) shall not be obligated apply, PHIL will not have any obligation to indemnify the Datatel Indemnified Parties under this Agreement and hold harmless KCCO pursuant to this Section 10.1(a)(i) with 10 in respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and arising under Section 10.2 unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of all such Datatel Losses (excluding individual Datatel incurred or suffered by KCCO exceeds the Basket at which point PHIL will indemnify KCCO for all Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdBasket, and PHIL’s aggregate liability in respect of claims for indemnification pursuant to Section 10.2 will not exceed the Purchase Price.
(c) The representations and warranties amount of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement any Losses for which an Indemnifying Party shall not survive the Closing; provided that be liable hereunder shall be determined after deducting therefrom (ia) the Fundamental Representations amount of any insurance proceeds actually received from a third-party insurer and the representations any other amounts actually recovered from a third party pursuant to indemnification or otherwise, in each case net of costs and warranties set forth in Sections 5.1 expenses (including collection expenses, premium increases, retro-premiums and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(Dany retention amounts), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iiib) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary amount of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained any net cash tax benefit actually realized as a result of such Loss in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date current or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsany prior taxable year.
(d) The obligations Except with respect to indemnify injunctive and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when non-monetary equitable relief, PHIL and KCCO each acknowledge and agree that, from and after the applicable representationClosing, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify their sole and hold harmless shall not terminate exclusive remedy with respect to any item as and all claims for money damages pursuant to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to this Agreement shall be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) pursuant to the Indemnifying Partyprovisions of this Section 10.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 6.2 or Section 6.3 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrarycontrary contained in this Agreement, SunGard Data neither Seller Indemnitors nor Purchaser shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that have any indemnification obligation with respect to Datatel Losses pursuant any claim covered by the indemnities under Section 6.2 or Section 6.3, respectively, unless the indemnifying party has been notified in writing of such claim prior to eighteen (18) months after the Closing Date, other than claims against Seller Indemnitors under (i) Section 10.1(a)(i6.2(a) regarding a breach or inaccuracy of Section 3.6 (Custodial Accounts), SunGard Data (ii) Section 6.2(c) regarding fraud on the part of any of the Seller Indemnitors, or (iii) Section 6.2(j) regarding Taxes, each of which shall not be obligated to indemnify survive for the Datatel Indemnified Parties for aggregate Datatel Losses in excess period of an amount equal to $177,500,000the applicable statute of limitations plus ninety (90) days.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Seller Indemnitors shall not be obligated liable to indemnify the Datatel Indemnified Parties Purchaser Indemnitees under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel amount of Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such in respect of indemnification collectively exceed two million dollars under Section 6.2 exceeds Twenty-Five Thousand and 00/100 Dollars ($2,000,00025,000.00) (the “ThresholdSeller Basket Amount”), whereupon such indemnification ) after which Seller Indemnitors shall be made by SunGard Data liable only with respect to the amount of for such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdBasket Amount; provided, however, the Seller Basket Amount shall not apply to any Loss which results from, arises out of or relates to (i) a breach of or inaccuracy in any of the Seller Fundamental Representations or Section 3.4 (Financial Statements), (ii) fraud by any of the Seller Indemnitors, (iii) a breach of any covenant or agreement by Seller under Section 7.3, or (iv) any Excluded Liabilities.
(c) The representations and warranties of Notwithstanding anything to the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contrary contained in this Agreement shall not survive Agreement, the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary maximum amount of the Closing and aggregate liability of Seller Indemnitors for any indemnification obligations under this Section 6 shall be limited to Five Hundred Thousand Dollars (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a$500,000) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c“Seller Indemnity Cap”); provided, however, that such obligations to indemnify and hold harmless the Seller Indemnity Cap shall not terminate with respect apply to any item as Loss which results from, arises out of or relates to which the SunGard Indemnified Party (i) a breach of or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration inaccuracy in any of the Seller Fundamental Representations or Section 3.4 (Financial Statements), (ii) fraud by any of the Seller Indemnitors, (iii) a breach of any covenant or agreement by Seller under Section 7.3, or (iv) any Excluded Liabilities.
(d) For purposes of this Section 6, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable survival periodto such representation or warranty.
(e) Any Losses subject to indemnification pursuant to this Article VI will be net of insurance proceeds actually received, previously made a claim realized or recovered by delivering a written notice (stating the indemnified party in reasonable detail respect of the basis subject matter of such claim) to the Indemnifying PartyLosses.
Appears in 1 contract
Certain Limitations. Notwithstanding anything in Section 2 hereof to the contrary:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Guarantor shall not be obligated required by this Guaranty to indemnify Datatel Indemnified Parties for aggregate Datatel Losses perform any Guarantied Obligation or undertaking if the performance thereof is illegal or impossible under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.Law;
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Guarantor shall not be obligated required to indemnify perform any Guarantied Obligation while the Datatel Indemnified Parties under this Agreement pursuant performance of such Guarantied Obligation is being disputed in good faith by the Person required to Section 10.1(a)(iperform such Guarantied Obligation;
(c) the Guarantor’s liability hereunder with respect to any individual Datatel Loss Guarantied Obligation shall not exceed the liability of the Class B Member with respect to such Guarantied Obligation, with reference specifically, but without limitation, to Section 6.2 of the ECCA and Section 11.02 of the LLC Agreement;
(d) the Guarantor shall have no liability hereunder with respect to any action or series inaction of related Datatel Losses the Managing Member or Tax Matters Member or any breach or noncompliance by the Managing Member or Tax Matters Member with any of the Guarantied Obligations, if the Class B Member (or any successor Managing Member or Member that is an Affiliate of the Guarantor) was not, at the time of such action, inaction, breach or noncompliance the Managing Member or Tax Matters Member, as applicable;
(e) the Guarantor’s aggregate liability hereunder shall not exceed $72,849,888 less than seventy-five thousand dollars all amounts which have been paid by or on behalf of the Class B Member or the Class B Member ($75,000as defined in the LLC Agreement) pursuant to Article 6 of the ECCA or Section 5.04 or Article 11 of the LLC Agreement (the “Minimum Aggregate Liability Amount”) and unless and until ); provided, that the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than liability of the Minimum Amount) subject to such indemnification collectively Guarantor shall not exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses calculated pursuant to Section 6(f); and
(excluding individual Datatel Losses or related Datatel Losses less than f) the Minimum Amount) in excess Guarantor’s aggregate liability from time to time hereunder, under Article 6 of the Threshold.
(c) The representations ECCA and warranties under Article 11 of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this LLC Agreement shall not survive the Closing; provided that exceed (i) if the Fundamental Representations and Flip Point has not occurred, an amount the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitelypayment of which, (ii) solely if treated as a positive Cash Flow for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (605.06(b)(iii) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary LLC Agreement as of the Closing. The covenants and agreements contained in this Agreement shall not survive Distribution Date immediately following payment of such amount, would cause the Closing; provided that (i) Flip Point to occur on or prior to the covenants and agreements contained date on which the Flip Point is projected to occur in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing Base Case Model and (ii) if the covenants and agreements contained Flip Point has occurred, zero. For purposes of determining Guarantor’s maximum liability pursuant to this Section 6(f), all payments pursuant to this Guaranty shall be deemed to have been treated as positive Cash Flow for purposes of Section 5.06(b)(iii) of the LLC Agreement. Notwithstanding the foregoing, if (x) any Third Party Action under the ECCA or the LLC Agreement filed against or demanded of the Beneficiary prior to the Flip Point shall not have been finally resolved or (y) any Tax contest or dispute applicable to a taxable period prior to the Flip Point or during which the Flip Point occurs relates to any Company Tax Return applicable to a year prior to the Flip Point or during which the Flip Point occurs and, in this Agreement and either case, shall cause the Asset Purchase Agreement Flip Point to fail to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) achieved (other than Section 10.1(a)(vas a result of a change in a Fixed Tax Assumption)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when , the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify Guarantied Obligations under Article 6 of the ECCA and hold harmless under Article 11 of the LLC Agreement shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) subject to the Indemnifying Partylimitations described in clause (ii) until the Flip Point occurs.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data The Stockholders shall not be obligated required to indemnify Datatel Indemnified Parties the Parent Indemnitees with respect to any claim under Section 8.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of such claims exceeds an amount equal to three hundred fifty thousand dollars ($1,775,000,000350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided provided, that with respect the foregoing limitation shall not apply to Datatel Losses (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to Section 10.1(a)(iitem 3 on Schedule 8.2(g), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to The sole and exclusive remedy of the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) Parent Indemnitees with respect to any individual Datatel Loss or series of related Datatel and all Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses based upon, arising out of, or related Datatel Losses less than to this Agreement or the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”)Contemplated Transactions, whereupon such indemnification shall be made by SunGard Data only via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to the amount of such Datatel any and all Losses (excluding individual Datatel Losses based upon, arising out of, or related Datatel Losses less than to the Minimum Amount) in excess Special Indemnity, the sole and exclusive remedy of the ThresholdParent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7.
(c) The representations and warranties amount of any Losses for which the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery).
(d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the determining whether or not any breaches of representations and or warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iiihave occurred) the representations and warranties set forth in Section 5.4(c)ARTICLE III shall not be deemed to be qualified by any materiality, Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements Company Material Adverse Effect or other similar qualifications contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement or otherwise applicable to be performed after the Closing shall survive until the date such representation or dates explicitly specified therein or, if not so specified, until performed in accordance with their termswarranty.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 1 contract
Sources: Agreement and Plan of Merger (ZeroFox Holdings, Inc.)
Certain Limitations. The liability of the Seller, Parent or the Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Notwithstanding anything contained herein to At any time after the contraryapplicable Survival Date for a representation and warranty, SunGard Data (i) the Seller shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses have no further obligations under this Agreement Article IX for breaches of such representations and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) warranties of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that Seller, except for Damages with respect to Datatel Losses pursuant which the Buyer Indemnitee has timely given the Seller written notice prior to Section 10.1(a)(i)such date in accordance with Sections 8.1 and 9.3 and (ii) the Buyer shall have no further obligations under this Article IX for breaches of such representations and warranties of the Buyer, SunGard Data shall not be obligated except for Damages with respect to indemnify which the Datatel Indemnified Parties for aggregate Datatel Losses Seller Indemnitee has given the Buyer written notice prior to such date in excess of an amount equal to $177,500,000accordance with Sections 8.1 and 9.3.
(b) Notwithstanding anything contained herein to the contrarycontrary herein, SunGard Data except with respect to Fraud Claims, any claim by a Buyer Indemnitee against Seller pursuant to Section 9.1(a) shall not be obligated payable by Seller only in the event that the accumulated amount of Damages in respect of Seller’s obligations to indemnify the Datatel Indemnified Parties Buyer Indemnitees under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars (shall exceed $75,000) 100,000 in the aggregate (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Seller Indemnification Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Seller shall exceed the Seller Indemnification Threshold, Seller shall thereafter be liable for all Damages suffered or incurred by the Buyer Indemnitees in excess of such initial $100,000 of Damages.
(c) Notwithstanding anything to indemnify and hold harmless shall not terminate the contrary herein, except with respect to Fraud Claims (for which there shall be no limitation), in no event shall the maximum aggregate liability of Seller in respect of any item claims by the Buyer Indemnitees against Seller pursuant to
Section 9.1 (a) for Damages suffered or incurred by any Buyer Indemnitees exceed 10% of the value of the Purchase Price (as adjusted pursuant to which Section 2.4), except that with respect to Damages suffered or incurred by any Buyer Indemnitee due to a breach of Section 3.16 the SunGard Indemnified Party maximum aggregate liability of Seller shall be 20% of the value of the Purchase Price (as adjusted pursuant to Section 2.4).
(d) Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply to claims for indemnification by Buyer Indemnitees against Seller in pursuant to Sections 9.1(b), 9.1(c), 9.1(d), and 9.1(e); provided, however, that except for Fraud Claims, Buyer’s or Datatel Indemnified PartyParent’s (or any Buyer Indemnitee’s) right to make a claim for indemnification under Sections 9.1(b), as the case may be9.1(c), to be indemnified (each9.1(d), an “Indemnified Party”and 9.1(e) shall have, before the expiration of the applicable survival period, previously expire with respect to such claims which are not made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) on or prior to the Indemnifying Partydate five years following the Closing Date.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.04 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein The Indemnified Party shall take reasonable steps to mitigate any Loss to the contraryextent required by Law.
(b) The maximum aggregate amount of all Losses for which the Equityholders shall be liable herein shall not exceed the Total Indemnification Cap.
(c) Other than with respect to Losses due to Parent’s failure to pay the Parent Merger Shares, SunGard Data Earnout Consideration, or Refunded Liability Amounts as required hereunder, the maximum aggregate amount of all Losses for which Parent, Merger Sub, and/or the Surviving Corporation shall be collectively liable in the aggregate shall not exceed the Total Consideration, less (ii) the aggregate amount of all Assumed Liabilities, Earnout Consideration, and Refunded Liability Amounts and any indemnification payments or other Losses, in each case paid by Parent, Merger Sub and the Surviving Corporation as of the applicable date.
(d) Other than with respect to Losses due to Parent’s failure to pay the Parent Merger Shares, Earnout Consideration, or Refunded Liability Amounts as required hereunder, no Equityholder Indemnitee shall be entitled to recover indemnifiable Losses unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Equityholder Indemnitees exceeds O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000), after which time, subject to the terms and conditions of this ARTICLE IX, Equityholder Indemnitees shall be entitled to recover for all indemnifiable Losses pursuant to Section 9.04(a) in excess thereof. No Parent Indemnitee shall be entitled to recover indemnifiable Losses unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Parent Indemnitees exceeds O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000), after which time, subject to the terms and conditions of this ARTICLE IX, Parent Indemnitees shall be entitled to recover for all indemnifiable Losses pursuant to Section 9.02(a) in excess thereof.
(e) Subject to Section 9.05(d), all Losses for indemnification claims under Section 9.02 shall be satisfied solely by set-off against the payment of any Earnout Consideration, if applicable, and only to the extent such Earnout Consideration has not yet been paid to Equityholders. A Parent Indemnitee has no right to satisfy indemnification claims for Losses pursuant to Section 9.02 out of Earnout Consideration to the extent actually paid to an Equityholder, or to seek indemnification for Losses that exceeds the amount of Earnout Consideration not yet paid to the Equityholders.
(f) None of the limitations set forth herein shall apply to any claim determined by a court of competent jurisdiction or arbitrator to constitute fraud, intentional misrepresentation or willful misconduct. If a court of competent jurisdiction or arbitrator determines that any Equityholder has engaged in fraud, intentional misrepresentation or willful misconduct in connection with this Agreement or any of the Transaction Documents (“Culpable Equityholder”), then none of the limitations set forth in this Section 9 shall apply to any Culpable Equityholder. A Parent Indemnitee has no right to satisfy indemnification claims for Losses pursuant to this Section 9.02(f) against any Equityholder other than a Culpable Equityholder, or to seek indemnification for Losses that exceeds the amount of Additional Payments unpaid to such non-culpable Equityholder.
(g) The Equityholders shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) any Parent Indemnitee with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (to the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to extent that the amount of such Datatel Losses (excluding individual Datatel Losses Loss was reflected as a current liability or related Datatel Losses less than reserve and actually subtracted in the Minimum Amount) in excess calculation of the Thresholdfinal Payoff Liabilities.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 1 contract
Sources: Merger Agreement (OncoCyte Corp)
Certain Limitations. (ai) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated liable to indemnify Datatel Indemnified Parties Buyer for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) any Damages based upon, arising out of, or otherwise in respect of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties matters set forth in Section 5.9 shall survive until sixty 15(a)(i) hereof once the aggregate amount of Damages actually paid by Seller to the Buyer Group with respect to such claims exceeds Two Million Dollars (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c$2,000,000); provided, however, that such obligations the limitation contained in this clause shall not apply to any Damages based upon, arising out of, or otherwise in respect of any falsity, breach or inaccuracy of Seller's representation and warranty with regard to title to the Assets contained in Section 5(e).
(ii) Seller shall not be liable to indemnify and hold harmless Buyer for any Damages based upon, arising out of or otherwise in respect of the matters set forth in Section 15(a)(i) hereof, except to the extent that the aggregate amount of Damages exceeds One Hundred Thousand Dollars ($100,000) (the "Threshold Amount"); provided, however, that once the Threshold Amount has been exceeded the Seller shall not terminate be liable for the entire amount of such Damages, including the Threshold Amount.
(iii) The amount of any Damages for which indemnification is provided under this Agreement shall be net of any amounts recovered or recoverable by the Indemnified Party from third parties (including, without limitation, amounts recovered or recoverable under insurance policies) with respect to any item such Damages or other liability. Seller and Buyer, as to which the SunGard appropriate, shall, or shall cause each Indemnified Party to, use its reasonable best efforts to pursue promptly any claims or Datatel Indemnified Partyrights it may have against all third parties which would reduce the amount of Damages for which indemnification is provided under this Agreement.
(iv) Neither Seller nor Buyer shall have any obligation to indemnify the other or any other persons under this Agreement against, as the case may beor otherwise have any liability under this Agreement with respect to, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partylost profits or consequential damages.
Appears in 1 contract
Sources: Asset Sale Agreement (American Mobile Satellite Corp)
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that Except with respect to Datatel Losses pursuant to Section 10.1(a)(i)breaches of the Fundamental Representations, SunGard Data Seller shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(bhave any indemnification obligations under Section 8.1(a)(ii) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel amount of all indemnifiable Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject suffered by Purchaser Indemnified Parties for which Purchaser Indemnified Parties would be entitled to such indemnification collectively exceed two million dollars exceeds One Million Seven Hundred Sixty-Two Thousand Five Hundred Dollars ($2,000,0001,762,500) (the “Threshold”), whereupon such indemnification whereupon, provided the other requirements of this Article VIII have been complied with, Seller shall be made by SunGard Data only with respect to indemnify and hold the Purchaser Indemnified Parties harmless for the amount of such Datatel indemnifiable Losses (excluding individual Datatel which exceed the Threshold, as herein provided; except that, the aggregate amount of indemnifiable Losses or related Datatel Losses less than the Minimum Amount) in excess recoverable under Section 8.1(a)(ii), except with respect to breaches of the ThresholdFundamental Representations, by the Purchaser Indemnified Parties shall be limited to Forty-Seven Million Dollars ($47,000,000) and the aggregate amount of indemnifiable Losses recoverable under Section 8.1(a)(ii), including with respect to breaches of the Fundamental Representations, by the Purchaser Indemnified Parties shall be limited to the Purchase Price.
(cb) The representations and warranties Except with respect to breaches of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty 4.1, 4.2, 4.5, 4.9 and 4.10 (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c“Fundamental Purchaser Representations”), Purchaser shall not have any indemnification obligations under Section 5.20 8.2(a)(ii) unless and Section 5.21 shall survive until the one year anniversary aggregate amount of all indemnifiable Losses suffered by Seller Indemnified Parties for which Seller Indemnified Parties would be entitled to indemnification exceeds One Million Seven Hundred Sixty-Two Thousand Five Hundred Dollars ($1,762,5000) (the Closing. The covenants and agreements contained in “Purchaser Threshold”), whereupon, provided the other requirements of this Agreement Article VIII have been complied with, Purchaser shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold the Seller Indemnified Parties harmless a Party pursuant to for the amount of such indemnifiable Losses which exceed the Purchaser Threshold, as herein provided; except that, the aggregate amount of indemnifiable Losses recoverable under Section 10.1(a) (other than Section 10.1(a)(v8.2(a)(ii)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate except with respect to any item as breaches of Fundamental Purchaser Representations, by the Seller Indemnified Parties shall be limited to which Forty-Seven Million Dollars ($47,000,000) and the SunGard aggregate amount of indemnifiable Losses recoverable under Section 8.2(a)(ii), including with respect to breaches of Fundamental Purchaser Representations, by the Seller Indemnified Party or Datatel Indemnified Party, as the case may be, to Parties shall be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) limited to the Indemnifying PartyPurchase Price.
Appears in 1 contract
Sources: Stock Purchase Agreement (Integra Lifesciences Holdings Corp)
Certain Limitations. Notwithstanding anything to the contrary in this Agreement and without limitation upon the limitations elsewhere in this Agreement: (1) Seller shall have no liability (and Buyer shall make no claim against Seller) for a breach of any representation or warranty or any other obligation of Seller under this Agreement or any document executed by Seller in connection with this Agreement unless (a) Notwithstanding the valid claims for all such breaches collectively aggregate to more than Seventy-five Thousand ($75,000), and (b) the liability of Seller under this Agreement and such documents does not exceed, in the aggregate, the amount equal to One Million Nine Hundred Thousand Dollars ($1,900,000) (the “Cap”) (it being understood that, notwithstanding anything contained herein to the contrarycontrary in this Agreement or any other document, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses Seller’s liability under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) documents executed by Seller in connection herewith shall in no event exceed, in the aggregate, the amount of the Asset Purchase Agreement Cap); and (2) in excess no event shall Seller be liable for any consequential or punitive damages; provided, however, the Cap and Survival Period shall not apply to the post-closing reproration obligations of an amount equal to $1,775,000,000; provided that Buyer under Section 6D(2), Seller’s obligations with respect to Datatel Losses real estate taxes under Section 6(D)(1(a) hereof, and fees and costs of enforcement of the Agreement. Seller shall maintain (i) during the Survival Period, a liquid net worth equal to at least the amount of the Cap and (ii) after the Survival Period, a liquid net worth equal to at least the lesser of the amount of the Cap or the aggregate amount claimed by Buyer in Breach Notices delivered to Seller during the Survival Period; provided, however, that Seller shall not have any further obligations pursuant to Section 10.1(a)(i), SunGard Data shall clause (ii) if Buyer has not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) commenced litigation with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars such claims within thirty ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (6030) days after the expiration of the applicable statute Survival Period or from and after such time as all such claims have been settled or finally determined by a court of limitations, and (iii) the representations and warranties set forth in competent jurisdiction. The obligations of Seller under this Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 1 contract
Sources: Purchase Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer Indemnitees for aggregate Datatel Losses indemnification under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a10.02(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Seller Fundamental Representation or Special Representation) (the “Seller Exclusions”) until the aggregate amount of all Losses pursuant in respect of indemnification under Section 10.02(a) (other than those based upon, arising out of, with respect to Section 10.1(a)(ior by reason of the Seller Exclusions) exceeds $25,000 (the “Deductible”), SunGard Data in which event Seller shall not be obligated required to indemnify pay or be liable for all such Losses above the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000Deductible.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyer shall not be obligated liable to indemnify the Datatel Indemnified Parties Seller Indemnitees for indemnification under this Agreement pursuant to Section 10.1(a)(i10.03(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any individual Datatel Loss inaccuracy in or series breach of related Datatel Losses of less than seventy-five thousand dollars ($75,000any Buyer Fundamental Representation) (the “Minimum AmountBuyer Exclusions”) and unless and until the aggregate Datatel amount of all Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such in respect of indemnification collectively exceed two million dollars ($2,000,000under Section 10.03(a) (the “Threshold”)other than those based upon, whereupon such indemnification shall be made by SunGard Data only arising out of, with respect to or by reason of Buyer Exclusions) exceeds the amount of Deductible, in which event Buyer shall be required to pay or be liable for all such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Thresholdabove such amount.
(c) The representations and warranties aggregate amount of indemnification that the SunGard EntitiesBuyer Indemnitees may receive to satisfy claims under Section 10.02(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Seller Exclusions) shall be $1,000,000 (the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D“Cap”), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations aggregate amount of indemnification that the Seller Indemnitees may receive to indemnify and hold harmless a Party pursuant to satisfy claims under Section 10.1(a10.03(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any item as to which the SunGard Indemnified Party inaccuracy in or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”breach of any Buyer Exclusions) shall havebe the Cap.
(e) Notwithstanding the foregoing, before the expiration limitations set forth above in subsections (a)-(d) above shall not apply to Losses based upon, arising out of, with respect to or by reason of the applicable survival periodfraud, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partyintentional misrepresentation or willful misconduct.
Appears in 1 contract
Certain Limitations. The indemnification provided for in this Article XI shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contraryThe Shareholders, SunGard Data collectively, shall not be obligated liable to indemnify Datatel the Shareholder Indemnified Parties for indemnification under Section 11.01(a) until the aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) amount of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that all Losses, collectively with respect to Datatel Losses pursuant to all of the Shareholder Indemnified Parties, in respect of indemnification under Section 10.1(a)(i11.01(a) exceeds $10,000 (the “Basket”), SunGard Data shall not in which event the Shareholders shall, collectively, be obligated required to indemnify the Datatel Indemnified Parties pay or be liable for aggregate Datatel all such Losses in excess of an amount equal the Basket, provided that the Parties acknowledge and agree that the maximum liability of the Shareholders, collectively, for indemnification pursuant to this Article XI shall be the sum of $177,500,000100,000 (the “Cap”), and the Shareholders, collectively, shall not have any liability to the Shareholder Indemnified Parties, collectively, in excess of the Cap.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data M▇. ▇▇▇▇▇▇ shall not be obligated liable to indemnify the Datatel C▇▇▇▇▇ Indemnified Parties for indemnification under this Agreement pursuant to Section 10.1(a)(i11.01(b) until the aggregate amount of all Losses, collectively with respect to any individual Datatel Loss or series all of related Datatel Losses the C▇▇▇▇▇ Indemnified Parties, in respect of less than seventy-five thousand dollars ($75,000indemnification under Section 11.01(b) (exceeds the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”)Basket, whereupon such indemnification in which event M▇. ▇▇▇▇▇▇ shall be made by SunGard Data only with respect required to the amount of pay or be liable for all such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdBasket, provided that the Parties acknowledge and agree that the maximum liability of M▇. ▇▇▇▇▇▇ for indemnification pursuant to this Article XI shall be the Cap, and M▇. ▇▇▇▇▇▇ shall not have any liability to the C▇▇▇▇▇ Indemnified Parties, collectively, in excess of the Cap.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement Liberated shall not survive be liable to the Closing; provided that (iLiberated Indemnified Parties for indemnification under Section 11.01(c) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary aggregate amount of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein orall Losses, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate collectively with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration all of the applicable survival periodLiberated Indemnified Parties, previously made a claim by delivering a written notice (stating in reasonable detail respect of indemnification under Section 11.01(c) exceeds the basis Basket, in which event Liberated shall be required to pay or be liable for all such Losses in excess of such claim) the Basket, provided that the Parties acknowledge and agree that the maximum liability of Liberated for indemnification pursuant to this Article XI shall be the Cap, and Liberated shall not have any liability to the Indemnifying PartyLiberated Indemnified Parties, collectively, in excess of the Cap.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data Cedent shall not be obligated to indemnify Datatel and hold harmless the Reinsurer Indemnified Parties under Section 5(d)(ii)(y) of this Article VIII (i) with respect to any claim or claims based on substantially similar facts, events or circumstances, unless such claim or claims involve Indemnifiable Losses in excess of $50,000 (the “Threshold Amount”) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which Cedent is responsible under clause (ii) below), and (ii) unless and until the aggregate amount of (x) all Indemnifiable Losses of the Reinsurer Indemnified Parties under such Section 5(d)(ii)(y) plus (y) all Indemnifiable Losses of the Reinsurer Indemnified Parties under Section 7.2(a)(i) of the Master Agreement exceeds $1,050,000 for all Indemnifiable Losses (the “Deductible”), at which point Cedent shall be liable to the Reinsurer Indemnified Parties for aggregate Datatel Losses the value of such claims under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a5(d)(ii)(y) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement that is in excess of the Deductible, subject to the limitations set forth in this section. The maximum aggregate liability of Cedent to the Reinsurer Indemnified Parties for any and all Indemnifiable Losses under Section 5(d)(ii)(y) shall be an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,00025,000,000.
(b) Notwithstanding anything contained herein No Reinsurer Indemnified Person shall be entitled to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) indemnification with respect to any individual Datatel particular Indemnifiable Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000under Section 5(d)(ii) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses extent the related damages, losses, liabilities, obligations, costs, or related Datatel Losses less than expenses were included in the Minimum Amount) in excess calculation of the ThresholdAdjusted Initial Ceded Total Reserves (as defined and finally calculated pursuant to the Master Agreement).
(c) The representations and warranties In the event a claim or any Action for indemnification under this Section 5 of the SunGard EntitiesArticle VIII has been finally determined, the Company and the Datatel Entities contained in Articles IV, V and VI amount of this Agreement such final determination shall not survive the Closing; provided that be paid (i) if the Fundamental Representations and indemnified party is a Reinsurer Indemnified Person, by Cedent to the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitelyReinsurer Indemnified Person and, (ii) solely if the indemnified party is a Cedent Indemnified Person, by Reinsurer to the Cedent Indemnified Person, in each case on demand by wire transfer of immediately available funds to an account designated by Cedent or Reinsurer, as applicable. A claim or an Action, and the liability for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of this Section 7.4(d)(i)(D), 5 of Article VIII when the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein Parties have so determine by mutual agreement or, if not so specifieddisputed, until performed in accordance when a final order, judgment, or decree of any Governmental Authority has been entered into with their termsrespect to such claim or action or an award is rendered by an arbitral tribunal.
(d) The obligations Notwithstanding anything contained in this Agreement to the contrary, in the event that any fact, event, or circumstance that results in an adjustment under Section 2.4 of the Master Agreement would also constitute a breach of or inaccuracy in any of Cedent’s representations or warranties made in Section 5(a) of this Article VIII of this Agreement, Cedent shall have no obligation to indemnify any Reinsurer Indemnified Person with respect to such breach or inaccuracy to the extent such indemnification would result in a duplicate recovery.
(e) Reinsurer acknowledges and hold harmless a Party agrees that, except with respect to causes of action arising out from actual fraud, its sole and exclusive remedy at law or equity with respect to the matters subject to indemnification pursuant to Section 10.1(a5(d)(ii) (other than Section 10.1(a)(v)) of this Article VIII, regardless of the legal theory under which the relevant liability or Section 10.1(b) (other than Section 10.1(b)(iii)) obligation may be sought to be imposed, whether sounding in contract or in tort, whether at law or in equity, or otherwise, shall terminate when the applicable representation, warranty or covenant terminates be pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating provisions set forth in reasonable detail the basis of such claim) to the Indemnifying Partythis Article VIII.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Purchaser Indemnitees shall not be obligated entitled to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement seek indemnification (and the Asset Purchase Agreement pursuant to Seller Parties shall not be liable) under Section 10.1(a9.02(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel a particular claim unless such claim involves Losses in excess of an $20,000 (the “Qualifying Threshold”), and the Seller Parties shall not be liable to the Purchaser Indemnitees in respect of indemnification under Section 9.02(a) unless the aggregate amount equal of Losses (pursuant to claims each of which exceeds the Qualifying Threshold) exceeds $177,500,000420,000 (the “Deductible”), and shall only be liable with respect to Losses in excess of the Deductible; provided, that the limitations set forth in this paragraph shall not apply to any claim pursuant to Section 9.02(a) relating to a breach or inaccuracy in any Fundamental Representation, other than representations with respect to Sections 4.18 (Environmental Matters), and 4.19 (Employee Benefit Matters), to which the Qualifying Threshold and the Deductible will apply. Purchaser Indemnitees shall not be entitled to such indemnification (and the Seller Parties shall not be liable) under Section 9.02(d)(v) for Losses in excess of $50,000 in the aggregate.
(b) Notwithstanding anything contained herein In the event Purchaser Indemnitees are entitled to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement indemnification pursuant to Section 10.1(a)(i9.02(a) or Section 9.02(i) (to the extent relating to a breach of any representations or warranties referred to in Section 9.02(a)), (i) Losses shall first be paid out of the R&W Retention Fund, and (ii) thereafter, Purchaser Indemnitees shall pursue recovery for such Losses under the R&W Insurance Policy (it being agreed by Purchaser that, subject to the last sentence of this paragraph, such claims cannot be brought directly against the Seller Parties or the Indemnification Escrow Fund, but rather are limited to and must be made only against the R&W Retention Amount that has been deposited to the R&W Retention Fund at Closing or against the R&W Insurance Policy, which two (2) sources constitute the sole and exclusive recourse of Purchaser Indemnitees with respect to indemnification under Section 9.02(a) or Section 9.02(i) (to the extent relating to a breach of any representations or warranties referred to in Section 9.02(a)), except in the case of a Seller Fraud Carve-Out Event, the liability for which is addressed in Section 9.04(c), as limited by Section 9.04(e)). Notwithstanding the foregoing, to the extent Purchaser becomes entitled to indemnification under Section 9.02(a) with respect to any individual Datatel Loss a breach of Sections 3.03 (Capitalization and Ownership) or series of related Datatel Losses of less than seventy-five thousand dollars 4.02 ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”Capitalization), whereupon such indemnification if Losses were not paid out under (i) or (ii) of the first sentence of this Section 9.04(b), Purchaser Indemnitees shall be made by SunGard Data only with respect entitled to recourse directly against the amount Seller Parties for a breach of such Datatel Losses Sections 3.03 (excluding individual Datatel Losses Capitalization and Ownership) or related Datatel Losses less than the Minimum Amount) in excess of the Threshold4.02 (Capitalization).
(c) The representations and warranties of In the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that event Purchaser Indemnitees are entitled to indemnification pursuant to Special Seller Parties’ Indemnity Obligations (i) Losses shall first be paid out of the Fundamental Representations Indemnification Escrow Fund and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of if the then-remaining Indemnification Escrow Fund has been exhausted or otherwise disbursed to the Seller Parties or the Seller Representative or is subject to claims by Purchaser Indemnitees, Purchaser Indemnitees shall be entitled to recourse directly against the Seller Parties, as limited by Section 7.4(d)(i)(D9.04(e).
(d) In the event Purchaser Indemnitees are entitled to indemnification pursuant to Additional Special Indemnity Obligations, (i) Losses incurred or sustained by, or imposed upon, the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration Purchaser Indemnitees based upon, arising out of, with respect to or by reason of the applicable statute Additional Special Indemnity Obligations (the “Additional Special Indemnity Losses”) shall be borne equally by Seller Parties, as a group, on the one hand, and by the Purchaser, on the other hand, up to a maximum amount of limitations$4,000,000 of Additional Special Indemnity Losses (i.e. Seller Parties, as a group, would only be responsible for up to a maximum of $2,000,000 of Additional Special Indemnity Losses in the aggregate); (ii) the Sellers Parties’ liability, as a group, for Additional Special Indemnity Losses pursuant to any particular claim of Additional Special Indemnity Obligations shall not exceed $1,000,000 (i.e. Seller Parties, as a group, would be responsible for up to a maximum of $1,000,000 of Additional Special Indemnity Losses incurred with respect to any particular claim related to an Additional Special Indemnity Obligations), and (iii) Additional Special Indemnity Losses shall only be payable from the Indemnification Escrow Fund, which source constitutes the sole and exclusive recourse of Purchaser Indemnitees with respect to indemnification with respect to Additional Special Indemnity Losses, except in the case of a Seller Fraud Carve-Out Event, the liability for which is addressed in Section 9.04(c), as limited by Section 9.04(e). In the event the amount of Losses with respect to then outstanding but unpaid Special Seller Parties’ Indemnity Obligations and Additional Special Indemnity Losses with respect to then outstanding but unpaid Additional Special Indemnity Obligations exceed the amount of the Indemnification Escrow Fund, Additional Special Indemnity Losses, if any, shall be paid out of the Indemnification Escrow Fund first, and then Special Seller Parties’ Indemnity Obligations shall be paid out of the Indemnification Escrow Fund (and thereafter as detailed in Section 9.04(c)), all as limited pursuant to this Section 9.04(d) and by Section 9.04(e).
(e) Notwithstanding anything in this Agreement to the contrary, in no event shall the aggregate liability of all members of the Seller Group or the liability of any individual member of the Seller Group in respect of any Losses pursuant to this Article IX, individually or in the aggregate (including when aggregated with liability for all other breaches of representations, warranties, covenants or agreements), exceed the total consideration actually received by such member of the Seller Group (which, for the avoidance of any doubt, shall include any amounts actually received by such member of the Seller Group from Seller). Notwithstanding anything in this Agreement to the contrary, in no event shall the aggregate liability of Seller in respect of any Losses pursuant to this Article IX, individually or in the aggregate (including when aggregated with liability for all other breaches of representations, warranties, covenants or agreements), exceed the total consideration actually received by Seller less any distributions of such total consideration to the Seller Group, and the aggregate liability of the Seller Parties for such Losses shall be limited to the total consideration actually received by the Seller Parties. For the purposes of clarity, to the extent that any Losses resulting from (i) (A) any breach of the representations or warranties in this Agreement or in any certificate or instrument delivered by or on behalf of any member of the Seller Group, or (B) any breach or nonfulfillment of any covenant, agreement or obligation to be performed in whole or in part by any member of the Seller Group are in either case attributable solely to an act or omission by any individual member of the Seller Group or (ii) an act of Fraud attributable to a particular member of the Seller Group, then such Losses shall be the sole responsibility of such individual member of the Seller Group, and warranties set forth in shall be deemed a “Non-Pro Rata Obligation,” and no other member of the Seller Group shall be liable to Purchaser Indemnitees for such Losses other than by recourse to the Indemnification Escrow Fund. For clarity, recourse for Non-Pro Rata Obligations shall be subject to and limited by the other provisions of this Agreement, including Section 5.4(c9.04(b), Section 5.20 9.04(c), and Section 5.21 9.04(d).
(f) Purchaser shall survive not be liable to the Seller Party Indemnitees for indemnification under Section 9.03(a) until the one year anniversary aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds the Deductible, in which event Purchaser shall be required to pay or be liable for all such Losses in excess of the ClosingDeductible. The covenants and agreements aggregate amount of all Losses for which Purchaser shall be liable pursuant to Section 9.03 shall not exceed the total consideration actually paid by Purchaser.
(g) For purposes of this Article IX, any inaccuracy or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement shall not survive the Closing; provided that or otherwise applicable to such representation or warranty, other than (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary definition of the Closing and Fraud, (ii) the covenants and agreements definition of Material Contracts, Material Customers or Material Suppliers contained in this Agreement the representations and warranties, (iii) in Section 4.06(c) (Undisclosed Liabilities), Section 4.07(a) (Absence of Certain Changes), or (iv) in Section 4.08(a)(iv), Section 4.08(a)(vi), Section 4.08(a)(xii) (Material Contracts), Section 4.09(d) (Title of Assets), Section 4.11(a)(iv) (Intellectual Property), Section 4.17(a) (to the Asset Purchase Agreement extent relating to be performed after the Closing shall survive until the date or dates explicitly specified therein orSection 4.18(g), if not so specifiedSection 4.19(b)(viii), until performed in accordance Section 4.20(a)(vii) below), Section 4.17(b) (Compliance with their termsLaws; Permits), Section 4.18(g) (Environmental Matters), Section 4.19(b)(viii) (Employee Benefit Matters) and Section 4.20(a)(vii) (Employment Matters).
(dh) To avoid double-counting, any Loss for which any party hereto would otherwise be obligated to provide indemnification hereunder will be offset to the extent such Loss is reflected in the determination of the Final Total Consideration.
(i) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) Seller Group may enter into one or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when more contribution agreements amongst the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration members of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail Seller Group whereby the basis members of such claim) group shall allocate liability under this Agreement amongst such parties and determine means to enforce such allocations as appropriate, including without limitation, liabilities that are join and several amongst the Indemnifying PartySeller Group.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Northwest Pipe Co)
Certain Limitations. (ai) Notwithstanding anything contained herein to the contrary, SunGard Data shall not foregoing,
(1) no claim may be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and made by the Asset Purchase Agreement Buyer Indemnitees pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i6.2(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel amount of all Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amountin respect of indemnification under Section 6.2(a)(i) subject to such indemnification collectively exceed two million dollars (exceeds $2,000,000) 100,000 (the “ThresholdBasket Amount”), whereupon such indemnification and thereafter, the Seller Indemnifying Parties shall be made by SunGard Data only with respect required to the amount of such Datatel pay or be liable for all Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdBasket Amount, until the aggregate amount of such Losses is $200,000 (the “Deductible Amount”).
(c2) The representations From and warranties after the time that the aggregate amount of all Losses in respect of indemnification under Section 6.2(a)(i) exceeds the Deductible Amount, Buyer, on the one hand, and the Seller Indemnifying Parties, on the other hand, shall bear an equal portion of the SunGard Entities, Losses until the Company and aggregate total amount for all Losses is equal to the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the ClosingRetention Amount; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 Seller Indemnifying Parties shall survive indefinitely, be solely responsible for all Losses arising from or related to Fraud committed by a Seller Indemnifying Party.
(ii) solely for purposes The indemnification obligation of the Seller Indemnifying Parties pursuant to Section 7.4(d)(i)(D6.2(a)(i), other than a claim for indemnification arising from any breach or inaccuracy of any IP Representations, any Fundamental Representation, or Fraud, shall be limited to sums held in the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and Indemnity Escrow Account.
(iii) Other than for Fraud, the representations and warranties set forth in Section 5.4(caggregate amount of Losses recoverable from the Seller Indemnifying Parties for IP Claims shall be limited to $20,000,000 (the “IP Cap”), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(div) The obligations Other than for Fraud, the aggregate amount of Losses recoverable from the Seller Indemnifying Parties for an Agreed Indemnity Event shall be limited to indemnify and hold harmless a Party $2,000,000 (the “Agreed Indemnity Event Cap”).
(v) Notwithstanding anything in the foregoing, the aggregate amount of Losses recoverable from the Seller Indemnifying Parties for any claim for indemnification pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) this Agreement, including Fundamental Claims and Fraud, shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) limited to the Indemnifying PartyPurchase Price (the “Purchase Price Cap”).
Appears in 1 contract
Sources: Asset Purchase Agreement (BigCommerce Holdings, Inc.)
Certain Limitations. (a) Notwithstanding anything contained herein to The obligations of the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement Seller in respect of Purchaser Indemnity Claims pursuant to Section 10.1(a8.02(a) (other than Purchaser Indemnity Claims in respect of a breach of any Fundamental Representations or Tax Representations or that arise from intentional fraud by the Seller, which shall not be subject to the limitations set forth in this Section 10.1(a)(v8.05(a)) (“Covered Purchaser Indemnity Claims”) shall become operative and Section 10.1(a) effective only if and to the extent that the aggregate amount of all Losses incurred by the Asset Purchase Agreement in excess applicable Indemnitees arising from Covered Purchaser Indemnity Claims exceeds $750,000 (the “Basket Amount”). Covered Purchaser Indemnity Claims shall accumulate until such time as the aggregate amount of an amount equal to $1,775,000,000; provided that with respect to Datatel all Losses pursuant to Section 10.1(a)(i)arising therefrom exceeds the Basket Amount, SunGard Data at which time the Seller shall not be obligated to indemnify the Datatel Indemnified Parties for applicable Indemnitees against such Losses, but only to the extent the aggregate Datatel Losses in excess of an amount equal to $177,500,000thereof exceeds the Basket Amount.
(b) Notwithstanding anything contained herein The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) (other than Seller Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from intentional fraud by the Purchaser, which shall not be subject to the contrarylimitations set forth in this Section 8.05(b)) (“Covered Seller Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Covered Seller Indemnity Claims exceeds the Basket Amount. Covered Seller Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, SunGard Data at which time the Purchaser shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant applicable Indemnitees against such Losses, but only to Section 10.1(a)(ithe extent the aggregate amount thereof exceeds the Basket Amount.
(i) with The maximum obligation of the Seller to provide indemnification in respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars (Covered Purchaser Indemnity Claims shall not exceed $75,000) 7,500,000 (the “Minimum Cap Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained maximum obligation of the Seller to provide indemnification in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party respect of Purchaser Indemnity Claims pursuant to Section 10.1(a8.02(a) (other than and Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)8.02(b) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c)not exceed $75,000,000; provided, however, that such obligations to indemnify and hold harmless the limitations in this clause (ii) shall not terminate apply to any Purchaser Indemnity Claim pursuant to Section 8.02(b) with respect to the Seller’s obligations and agreements in Section 1.05.
(d) (i) The maximum obligation of the Purchaser to provide indemnification in respect of Covered Seller Indemnity Claims shall not exceed the Cap Amount and (ii) the maximum obligation of the Purchaser to provide indemnification in respect of Seller Indemnity Claims pursuant to Section 8.03(a) and Section 8.03(b) shall not exceed $75,000,000; provided, however, that the limitations in this clause (ii) shall not apply to any item as Seller Indemnity Claim pursuant to which Section 8.03(b) with respect to the SunGard Indemnified Party Purchaser’s obligations and agreements in Section 1.05 .
(e) The obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Purchaser Indemnity Claim pursuant to Section 8.02(a) or Datatel Indemnified Partyseries of aggregated Purchaser Indemnity Claims pursuant to Section 8.02(a) arising out of the same or similar facts, events or circumstances exceeds $50,000 (the “De Minimis Threshold”), and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount.
(f) The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Seller Indemnity Claim pursuant to Section 8.03(a) or series of aggregated Seller Indemnity Claims pursuant to Section 8.03(a) arising out of the same or similar facts, events or circumstances exceeds the De Minimis Threshold, and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount.
(g) Each of the parties hereby acknowledges and agrees that the limitations provided for in paragraphs (a) and (b) above apply only to Covered Purchaser Indemnity Claims or Covered Seller Indemnity Claims (as the case may be), and do not apply to any other rights to indemnification provided for in this Article VIII, including rights to indemnification against Retained Liabilities or Assumed Liabilities (as the case may be).
(h) Any Losses for which any Indemnitee would be entitled to indemnification under this Article VIII shall be reduced by (i) any cash payments, setoffs or recoupment of any payments in each case receivable, realizable or retainable by such Indemnitee (including any amounts recovered or recoverable by the Indemnitee under insurance policies, including the Title Policies) or (ii) any Tax Benefit actually realized in the taxable year of such Loss or a prior taxable year, in each case as a result of any event giving rise to an Indemnity Claim. Each Indemnitee shall as promptly as practicable pay over to the Indemnitor any amounts actually recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of any amount previously so paid by the Indemnitor to or on behalf of the Indemnitee in respect of such Loss.
(i) The obligations of the Seller in respect of Purchaser Indemnity Claims shall not become operative and effective to the extent arising from (A) the conduct by the Purchaser or any of its Affiliates, employees, representatives or agents of any invasive or destructive sampling or assessment of any soil or groundwater at any of the Real Property unless such sampling or assessment (1) is required to be indemnified undertaken pursuant to any applicable Environmental Law or Order, (each2) arises in the ordinary course of business out of repairs, an “Indemnified Party”modifications, maintenance activities, construction or other capital projects, in each case relating to the Assets or Transferred Business and conducted consistent with industry practices, or (3) shall have, before the expiration arises in response to a requirement of a Governmental Authority or a financing source of the Purchaser or its Affiliates; (B) any material change made by the Purchaser in the scope of use of any Real Property (including the change resulting from the decommissioning, closure or shutdown of the Terminal) such that the Real Property is no longer used for similar industrial purposes; or (C) any conduct by the Purchaser or any of its Affiliates, employees, representatives or agents not consistent with that of a reasonable and prudent business person who owns the applicable survival period, previously made a claim Real Property (without consideration of the benefit of any indemnification provided by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying PartySeller).
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Certain Limitations. The indemnification provided for in Section 11.2 and Section 11.3 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated liable to indemnify Datatel Indemnified Parties the Purchaser Indemnitees for indemnification under Section 11.2(a) until the aggregate Datatel Losses amount of all Damages in respect of indemnification under this Agreement Section 11.2(a) exceeds $2,531,250 (the “Indemnification Threshold”), and once the Asset Purchase Agreement Indemnification Threshold has been exceeded, Seller shall only be required to pay or be liable for all such Damages in excess of the Indemnification Threshold. The aggregate amount of all Damages for which Seller shall be liable pursuant to Section 10.1(a11.2(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of shall not exceed an amount which is, together with amounts recovered under the Asset Purchase Agreement R&W Insurance Policy, in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i101,250,000 (the “Cap”), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Purchaser shall not be obligated liable to indemnify the Datatel Indemnified Parties Seller Indemnitees for indemnification under this Agreement pursuant to Section 10.1(a)(i11.3(a) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of all Damages in respect of indemnification under Section 11.3(a) exceeds the Indemnification Threshold, and once the Indemnification Threshold has been exceeded, Purchaser shall only be required to pay or be liable for all such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) Damages in excess of the Indemnification Threshold. The aggregate amount of all Damages for which Purchaser shall be liable pursuant to Section 11.3(a) shall not exceed the Cap.
(c) The representations and warranties of Notwithstanding the SunGard Entitiesforegoing, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties limitations set forth in Section 5.9 11.4(a) and Section 11.4(b) shall survive until sixty (60not apply to Damages based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty of any Fundamental Representations; provided, however, the aggregate amount of Damages that may be recovered by the Purchaser Indemnitees or the Seller Indemnitees under Section 11.2(a) days after or under Section 11.3(a) arising from any breach of, or misrepresentation or inaccuracy in, any Fundamental Representations shall not exceed an amount which is, together with amounts recovered under the expiration R&W Insurance Policy, in excess of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsSuper Cap.
(d) For purposes of this Article XI, any inaccuracy in or breach of any representation or warranty, and the calculation of Damages with respect thereto, shall be determined without regard to any materiality, Seller Material Adverse Effect or Purchaser Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(e) The obligations representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party's right to indemnify indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party's waiver of any condition set forth in Section 9.1.
(f) Except in the case of fraud by the Seller, in no event shall the Purchaser Indemnitees have the right under this Agreement to recover from Seller any amount which is, together with amounts recovered under the R&W Insurance Policy, in excess of the Super Cap.
(g) All Damages for which any Seller Indemnitee or Purchaser Indemnitee would otherwise be entitled to indemnification under this Article XI shall be reduced by recovery under the R&W Insurance Policy and hold harmless a Party other third-party recoveries actually received by such Seller Indemnitee or Purchaser Indemnitee in respect of any Damages incurred by such Seller Indemnitee or Purchaser Indemnitee (net of the out-of-pocket costs reasonably incurred of pursuing or obtaining such recovery). In the event any Seller Indemnitee or Purchaser Indemnitee is or may be entitled to any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Damages for which such Seller Indemnitee or Purchaser Indemnitee is entitled to indemnification pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) this Article XI, such Seller Indemnitee or Section 10.1(b) (other than Section 10.1(b)(iii)) Purchaser Indemnitee shall terminate when the applicable representationuse commercially reasonable efforts to obtain, warranty receive or covenant terminates pursuant to Section 10.2(c)realize such proceeds, benefits, payments or recoveries; provided, however, that such obligations to indemnify and hold harmless shall not terminate “commercially reasonable efforts” with respect to (i) the R&W Insurance Policy shall not include an obligation to seek “recovery” from Purchaser’s policies or programs of insurance, and (ii) any item other Person shall not (x) include the commencement of any Legal Proceeding in respect of such recovery, (y) require any prolonged, continuous or repetitive efforts, and (z) include an obligation to seek recovery from any insurance carrier or program. To the extent permissible under applicable Governmental Rules and Contracts, any unsuccessful claim for recovery notwithstanding commercially reasonable efforts against a third-party that is not a customer or vendor, or a potential customer or vendor of such Seller Indemnitee or Purchaser Indemnitee, as applicable, shall be assigned in subrogation upon collection under this Agreement of the full amount of applicable Damages claimed. In the event that any such insurance proceeds, indemnity payments or other third-party recoveries are realized by a Seller Indemnitee or Purchaser Indemnitee subsequent to receipt by such Seller Indemnitee or Purchaser Indemnitee of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, corresponding refunds shall be made promptly by the SunGard Indemnified Party relevant Seller Indemnitee or Datatel Indemnified PartyPurchaser Indemnitee of all or the relevant portion of such indemnification payment (net of the out-of-pocket costs reasonably incurred of pursuing or obtaining such insurance proceeds, deductibles and any increased premium amounts attributable to such claim).
(h) The Seller Indemnitees and Purchaser Indemnitees shall not be entitled to recover more than once for the same Damages.
(i) No indemnity may be sought hereunder in respect of any Damages to the extent such Damages (but only to the extent that the amount of such Damages) is included in the calculations of the Net Working Capital, as finally determined, such that the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration party claiming indemnification received Purchase Price credit for such amount of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying PartyDamages.
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Certain Limitations. (a) Notwithstanding anything contained herein in this Agreement to the contrary, SunGard Data neither party shall not indemnify or otherwise be obligated liable to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that party with respect to Datatel Losses pursuant to any claim for any breach of a representation or warranty, or for the breach of any covenant contained in this Agreement, unless notice of the claim is given within the relevant survival period specified in Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,00010.1.
(b) Notwithstanding anything contained herein in this Agreement to the contrary, SunGard Data but except as otherwise provided in this subsection (b) and Schedule 10.5, Sellers shall not be liable to Buyer in respect of any indemnification hereunder except to the extent that (i) the aggregate amount of losses of Buyer exceeds One Million Dollars ($1,000,000) (the "Threshold Amount") (and then only to the extent such losses exceed the excess of Five Hundred Thousand Dollars ($500,000)) over an amount (not in excess of $100,000) which Sellers are not required to expend in environmental remediation as a result of the Environmental Threshold Amount (such excess being the "Excess Amount") and (ii) the aggregate amount of losses of Buyer is less than the excess of Fifty Million Dollars) ($50,000,000) over any amounts expended by Buyer pursuant to Section 6.15, or with respect to which Buyer receives a proration in its favor under Section 6.15 (such excess being the "Indemnity Cap"); provided, the foregoing shall not be applicable to any amounts owed in connection with the Purchase Price or the proration adjustment thereof. In determining whether Sellers shall be obligated to indemnify the Datatel Indemnified Parties Buyer under this Section 10, once the Threshold Amount has been satisfied, each representation and warranty and each covenant contained in this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification for which indemnity may be sought hereunder shall be made by SunGard Data only with respect to the amount read solely for purposes of determining whether a breach of such Datatel Losses representation, warranty or covenant has occurred without regard to materiality (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amountincluding Material Adverse Effect) in excess of the Thresholdqualifications that may be contained therein.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI Notwithstanding any other provision of this Agreement to the contrary, in no event shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitelya party be entitled to indemnification for such party's consequential or punitive damages, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration regardless of the applicable statute theory of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closingrecovery. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement Each party hereto agrees to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations use reasonable efforts to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to mitigate any item as to losses which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail form the basis of such claim) to the Indemnifying Partyfor any claim for indemnification hereunder.
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Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Certain Limitations. (aThe indemnification provided for in Section 9(b) Notwithstanding anything contained herein and Section 9(c) shall be subject to the contrary, SunGard Data following limitations: 66
(i) Seller shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer Indemnitees for indemnification under Section 9(b)(i) until the aggregate Datatel amount of all Losses in respect of indemnification under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a9(b)(i) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of exceeds an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify one percent (1%) of the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) Premium (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “ThresholdBasket”), whereupon such indemnification in which event the Buyer Indemnitees shall be made by SunGard Data only with respect required to pay and be liable for all Losses up to the amount of Basket and Seller shall be required to pay and be liable for all such Datatel Losses (excluding individual Datatel Losses that equal or related Datatel Losses less than exceed the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c)Basket; provided, however, that such obligations the aggregate amount of all Losses for which Seller shall be liable, in the aggregate, pursuant to indemnify and hold harmless Section 9(b)(i) shall not terminate exceed Seven Hundred Fifty Thousand Dollars ($750,000) (the “Cap”). For the avoidance of doubt, the Cap does not include any Losses paid by Buyer up to the Basket.
(ii) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 9(c)(i) until the aggregate amount of all Losses in respect of indemnification under Section 9(c)(i) exceeds the Basket, in which event the Seller Indemnitees shall be required to pay and be liable for all Losses up to the Basket and Buyer shall be required to pay and be liable for all such Losses that equal or exceed the Basket; provided, however, that the aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 9(c)(i) shall not exceed the Cap. For the avoidance of doubt, the Cap does not include any Losses paid by Seller up to the Basket.
(iii) Notwithstanding the foregoing, Section 9(d)(i) and Section 9(d)(ii) shall not apply to (i) Losses under Section 9(b)(i) or Section 9(c)(i) based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representations, Losses arising out of or related to any fraud or intentional misrepresentation, or any Losses under Section 9(b)(iii) and Section 9(c)(ii), and instead such Losses shall not in the aggregate with all other Losses under Section 9(b)(i) or Section 9(c)(i), as applicable, exceed an amount equal to the Purchase Price; or (ii) attorneys’ fees and costs.
(iv) For purposes of this Section 9 any inaccuracy in or breach of any representation or warranty shall be determined with respect to any item as materiality, Material Adverse Effect or other similar qualification, but once there is such inaccuracy or breach, the amount of any resulting Losses shall be calculated without regard to which the SunGard Indemnified Party any materiality, Material Adverse Effect or Datatel Indemnified Party, as the case may be, other similar qualification contained in or otherwise applicable to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partyrepresentation or warranty.
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Certain Limitations. The indemnification provided for in Section 9.02Section 9.03 and Section 9.04 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein The Indemnified Party shall take reasonable steps to mitigate any Loss to the contraryextent required by Law.
(b) The maximum aggregate amount of all Losses for which the Shareholders shall be liable pursuant to Section 9.02 shall not exceed to an amount equal to the Total Consideration Cap, SunGard Data less the aggregate amount of any Closing Merger Consideration or Earnout Consideration that has already been paid and/or delivered (in the case of Parent Merger Shares or Parent Earnout Shares) to the Equityholders and Pre-Closing Noteholders as of the applicable date.
(c) For the avoidance of doubt, none of the limitations set forth herein shall apply to any claim for fraud, intentional misrepresentation or willful misconduct.
(d) No Shareholder Indemnitee shall be entitled to recover indemnifiable Losses pursuant to Section 9.04(a) unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Shareholder Indemnitees exceeds $500,000, after which, subject to the terms of this ARTICLE IX, the Shareholder Indemnitees shall be entitled to recover for all indemnifiable Losses pursuant to Section 9.04(a) from the first dollar of such Losses.
(e) The maximum aggregate amount of all Losses for which Parent, Merger Sub or the Surviving Corporation shall be liable herein shall not exceed the Total Consideration Cap; provided, that, in no event shall Parent be liable for any amounts under this Agreement in excess of the difference between (i) the Total Consideration Cap, less (ii) the aggregate amount of all Closing Merger Consideration, Earnout Consideration and any indemnification payments or other Losses paid or payable by Parent, Merger Sub and the Surviving Corporation as of the applicable date.
(f) With respect to each representation or warranty contained in this Agreement or in any certificate delivered pursuant hereto that is subject to a “materiality,” “material,” “Material Adverse Effect,” “Parent Material Adverse Effect,” “in all material respects” qualification, any such qualification shall be disregarded for calculating the amount of Losses subject to indemnification hereunder and for purposes of determining whether a breach of or inaccuracy in such representation or warranty has occurred. For purposes of clarity, nothing in this Section 9.05(f) is intended to alter any defined term herein.
(g) The Shareholders shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) any Parent Indemnitee with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (to the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to extent that the amount of such Datatel Losses (excluding individual Datatel Losses Loss was reflected as a current liability or related Datatel Losses less than reserve or as Indebtedness or Transaction Expenses and actually subtracted in the Minimum Amount) in excess calculation of the ThresholdFinal Closing Merger Consideration or Net Adjustment Amount as finally determined pursuant to Section 2.11(b) and Section 2.11(f)(v), respectively.
(ch) The representations All indemnification payments payable hereunder shall be reduced by the amount of insurance proceeds under any insurance policy paid for by the Shareholders (after deducting related costs and warranties expenses, including any deductible amount and any resultant increase in insurance premiums) actually received by the Indemnified Party as a result of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely Losses for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partyis seeking indemnification.
Appears in 1 contract
Sources: Merger Agreement (OncoCyte Corp)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) Notwithstanding anything contained herein to the contrary, SunGard Data (i) Seller Indemnitors shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer Indemnitees for indemnification under Section 8.02(a) until the aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) amount of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel all Losses in excess respect of an amount equal to $177,500,000.
(bindemnification under Section 8.02(a) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five exceeds fifty thousand dollars ($75,00050,000) (the “Minimum AmountTipping Basket”), in which event Seller Indemnitors shall be required to pay or be liable for all such Losses from the first dollar, and (ii) and unless and until the aggregate Datatel amount of all Losses (excluding individual Datatel Losses or related Datatel Losses less for which Seller Indemnitors shall be liable pursuant to Section 8.02(a), other than with respect to a breach of the Minimum Amount) subject to such indemnification collectively Fundamental Representations, shall not exceed two eight million dollars ($2,000,0008,000,000) (the “ThresholdCap”), whereupon such indemnification ) and (iii) the aggregate amount of all Losses for which Seller Indemnitors shall be made by SunGard Data only with respect liable pursuant to a breach of the Fundamental Representations in Section 8.02(a) and Section 8.02(b) shall not exceed the Purchase Price, including the Migration Payment Amount, to the extent actually paid to Sellers.
(i) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Tipping Basket, in which event Buyer shall be required to pay or be liable for all such Datatel Losses from the first dollar, and (excluding individual Datatel ii) the aggregate amount of all Losses or related Datatel Losses less than for which Buyer shall be liable pursuant to Section 8.03 shall not exceed the Minimum Amount) in excess of the ThresholdCap.
(c) The representations and warranties of Notwithstanding the SunGard Entitiesforegoing, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties limitations set forth in Section 5.9 shall survive until sixty (608.04(a) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement 8.04(b) shall not survive the Closing; provided that (i) the covenants and agreements contained apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in the Surviving Pre-Closing Covenants shall survive until the one year anniversary or breach of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsany Fundamental Representations.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) For purposes of this ARTICLE VIII, any inaccuracy in or Section 10.1(b) (other than Section 10.1(b)(iii)) breach of any representation or warranty shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect be determined without regard to any item materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(e) Each Party agrees to mitigate its respective Losses after becoming aware of any claim as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the required by applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying PartyLaw.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein No Seller Party shall be liable to the contraryBuyer Indemnitees for indemnification under Section 8.02(a), SunGard Data other than with respect to Specified Representations, until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a), other than with respect to Specified Representations, exceeds $150,000 (the “Basket”), in which event the Seller Parties shall not be obligated required to indemnify Datatel Indemnified pay or be liable for the total amount of all such Losses. The aggregate amount of all Losses for which the Seller Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement shall be liable pursuant to Section 10.1(a) (8.02(a), other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i)Specified Representations, SunGard Data shall not be obligated to indemnify exceed $7,500,000 (the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000“Cap”).
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyer shall not be obligated liable to indemnify the Datatel Indemnified Parties Seller Indemnitees for indemnification under this Agreement pursuant to Section 10.1(a)(i) 8.03(a), other than with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and Specified Representations, until the aggregate Datatel amount of all Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such in respect of indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”under Section 8.03(a), whereupon such indemnification shall be made by SunGard Data only other than with respect to Specified Representations, exceeds the amount of Basket, in which event Buyer shall be required to pay or be liable for all such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdBasket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a), other than with respect to Specified Representations, shall not exceed the Cap.
(c) The representations and warranties With respect to any claim for indemnification under this Agreement, the Buyer must first proceed against the Escrow Fund (and, if such claim relates to the ownership of the SunGard EntitiesOwned Real Property, then against the Company Title Policy), to the extent available, prior to proceeding directly against any Seller Party.
(d) The amount of any and all Losses under this ARTICLE VIII shall be determined net of any insurance or other recoveries actually received or recovered by the Datatel Entities contained Indemnified Party in Articles IV, V and VI connection with the facts giving rise to the right of this Agreement shall not survive the Closing; provided that indemnification.
(ie) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely Solely for purposes of Section 7.4(d)(i)(Ddetermining the amount of Losses under this ARTICLE VIII arising from any inaccuracy in or breach of any representation or warranty (but not for determining whether any such inaccuracy or breach has occurred), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements be deemed to be made without any materiality, Material Adverse Effect or other similar qualification contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement or otherwise applicable to be performed after the Closing shall survive until the date such representation or dates explicitly specified therein or, if not so specified, until performed in accordance with their termswarranty.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Target Hospitality Corp.)
Certain Limitations. (a) Notwithstanding anything contained herein to Except as otherwise expressly provided herein, Seller (on behalf of itself and as agent for the contrary, SunGard Data Other Sellers) shall not be obligated to indemnify Datatel Purchaser Indemnified Parties for aggregate Datatel Purchaser Losses under this Agreement and the Asset Purchase Agreement as follows:
(i) pursuant to Section 10.1(a) (other than Section 10.1(a)(v)Sections 9.1(a)(i) and Section 10.1(a) of the Asset Purchase Agreement 9.1(a)(ii), in excess of an amount equal to $1,775,000,000; 18% of the Purchase Price (the “Indemnity Cap”), provided, that any Purchaser Losses from any breach of a representation or warranty made by Seller in Sections 4.1 (Corporate Existence), 4.2(a), 4.2(b)(A) and 4.2(b)(C) (Corporate Authority) (collectively, the “Seller Corporate Representations”) shall not be subject to any limitation, other than as provided that with respect to Datatel Losses in Section 11.18 hereof;
(ii) pursuant to Section 10.1(a)(i9.1(a)(iii), SunGard Data in excess of the Purchase Price; and
(iii) pursuant to Sections 9.1(a)(iv) and 9.1(a)(v), without any limitation, other than as provided in Section 11.18 hereof.
(b) Purchaser (on behalf of itself and as agent for any Affiliates) shall not be obligated to indemnify the Datatel Seller Indemnified Parties for aggregate Datatel Seller Losses as follows:
(i) pursuant to Sections 9.1(b)(i) and 9.1(b)(ii), in excess of an amount equal to $177,500,000the Indemnity Cap, provided, that any breach of a representation or warranty made by Purchaser in Sections 5.1 (Corporate Existence) and 5.2 (Corporate Authority) (together, the “Purchaser Corporate Representations”) shall not be subject to any limitation, other than as provided in Section 11.18 hereof;
(ii) pursuant to Section 9.1(b)(iii), in excess of the Purchase Price; and
(iii) pursuant to Section 9.1(b)(iv), without any limitation, other than as provided in Section 11.18 hereof.
(bc) Notwithstanding anything contained herein here to the contrary, SunGard Data Seller (on behalf of itself and as agent for the Other Sellers) shall not be obligated to indemnify the Datatel Purchaser Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i(x) with respect to any individual Datatel Purchaser Loss or series of related Datatel Losses of less than seventy-five ten thousand dollars ($75,00010,000.00) (the “Minimum Amount”) and (y) unless and until the aggregate Datatel Purchaser Losses (excluding individual Datatel Losses or related Datatel Purchaser Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million hundred fifty thousand dollars ($2,000,000250,000.00) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only Seller with respect to the amount of such Datatel Purchaser Losses (excluding individual Datatel Purchaser Losses less than the Minimum Amount); provided, however, that the Threshold shall not apply to (i) a breach of the Seller Corporate Representations, or (ii) the matters described in Sections 9.1(a)(iii), 9.1(a)(iv) or 9.1(a)(v) hereof.
(d) Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to indemnify Seller Indemnified Parties under this Agreement (x) with respect to any individual Seller Loss of less than the Minimum Amount and (y) unless and until the aggregate Seller Losses (excluding individual Seller Losses or related Datatel Seller Losses less than the Minimum Amount) in excess subject to such indemnification collectively exceed the Threshold whereupon such indemnification shall be made by Purchaser with respect to the amount of such Seller Losses; provided, however, that the Threshold shall not apply to (i) a breach of the ThresholdPurchaser Corporate Representations, or (ii) the matters described in Sections 9.1(b)(iii) or 9.1(b)(iv) hereof.
(ce) The representations and warranties of the SunGard Entities, the Company Seller and the Datatel Entities Purchaser contained in Articles IVARTICLE IV and ARTICLE V, V and VI respectively, of this Agreement and any other Transaction Document shall not survive the Closing until 12 months after the Closing; provided provided, however, that (i) the Fundamental Seller Corporate Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 Purchaser Corporate Representations shall survive until the one year anniversary expiration of the Closingany applicable statute of limitation, including any suspensions, tollings or extensions thereof. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance the expiration of the applicable statute of limitations, including any suspensions, tollings or extensions thereof, with their termsrespect to the matters contained therein.
(df) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(vSections 9.1(a)(i), 9.1(a)(ii), 9.1(a)(iii), 9.1(b)(i), 9.1(b)(i)(ii) or Section 10.1(b) (other than Section 10.1(b)(iii)9.1(b)(iii) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c9.2(e); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Seller Indemnified Party or Datatel Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Agilent Technologies Inc)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to Seller and the contrary, SunGard Data Company shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer Indemnitees for indemnification under Section 8.02(a) until the aggregate Datatel amount of all Losses in respect of indemnification under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i8.02(a), SunGard Data together with Losses in respect of indemnification under Article VI, exceeds $25,000 (the “Deductible”), in which event Seller shall not be obligated required to indemnify the Datatel Indemnified Parties pay or be liable for aggregate Datatel all such Losses in excess of an the Deductible. The aggregate amount equal of all Losses for which Seller and/or the Company shall be liable pursuant to Section 8.02(a) shall not exceed Two Hundred Fifty Thousand Dollars ($177,500,000250,000) (the “Cap”); provided however that the aggregate amount of all Losses for which Seller and/or the Company shall be liable pursuant to Section 8.02(a) based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of the Fundamental Representations, together with Losses in respect of indemnification under Article VI, shall not exceed the Purchase Price.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyer shall not be obligated liable to indemnify the Datatel Indemnified Parties Seller Indemnitees for indemnification under this Agreement pursuant to Section 10.1(a)(i8.03(a) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel amount of all Losses (excluding individual Datatel Losses or related Datatel Losses less than in respect of indemnification under Section 8.03(a) exceeds the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”)Deductible, whereupon such indemnification in which event Buyer shall be made by SunGard Data only with respect required to the amount of pay or be liable for all such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdDeductible. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) The representations and warranties of Notwithstanding the SunGard Entitiesforegoing, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties limitations set forth in Section 5.9 8.04(a) and Section 8.04(b) shall survive until sixty (60) days after the expiration not apply to Losses based upon, arising out of, with respect to or by reason of the applicable statute fraud, willful breach or intentional misrepresentation of limitationsSeller, and (iii) the representations and warranties set forth in Section 5.4(c)Company or Buyer, Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsas applicable.
(d) The obligations For purposes of this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to indemnify and hold harmless a any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(e) Any payment made by an Indemnifying Party to an Indemnified Party pursuant to Section 10.1(a) (Article VIII in respect of any claim will be net of any insurance proceeds or other than Section 10.1(a)(v)) or Section 10.1(b) (recovery realized by and paid to the Indemnified Party in respect of such claim. Each Indemnified Party shall use commercially reasonable efforts to pursue recovery under all insurance policies and other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant rights of recovery available to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate it. If an Indemnified Party receives a recovery with respect to any item as to Losses for which the SunGard such Indemnified Party or Datatel has been previously compensated, such Indemnified Party shall remit the amount of such proceeds, in each case up to the amount previously paid by the applicable Indemnifying Party with respect to such Loss, to the applicable Indemnifying Party. An Indemnifying Party shall be subrogated to the Indemnified Party's rights of recovery to the extent of any Losses satisfied by the Indemnifying Party hereunder. The Indemnified Party shall execute and deliver such instruments and papers as are necessary to assign such rights and assist in the exercise thereof, as including reasonable access to the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration books and records of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying PartyCompany.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bio Key International Inc)
Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, SunGard Data The Purchaser Indemnified Parties shall not be obligated entitled to indemnify Datatel indemnification for (i) any Purchaser Subject Losses, unless the aggregate of all Purchaser Subject Losses incurred or suffered by the Purchaser Indemnified Parties for aggregate Datatel exceeds, on a cumulative basis, $2,250,000, and then only to the extent of such excess, or (ii) any Purchaser Subject Losses under this Agreement and arising or resulting from any matter or series of related matters where the Asset Purchase Agreement pursuant to Section 10.1(a) (other total amount of Purchaser Subject Losses arising or resulting therefrom is less than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,00025,000.
(b) Notwithstanding anything contained herein to The maximum amount of Purchaser Subject Losses that may be recovered by the contrary, SunGard Data shall not be obligated to indemnify the Datatel Purchaser Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel funds remaining in the Escrow Account. The maximum aggregate amount of Losses that may be recovered by the Purchaser Indemnified Parties pursuant to the provisions of Section 12.02(e) (excluding individual Datatel Losses other than as a result of a breach of Sections 8.07 or related Datatel Losses less than the Minimum Amount8.08), (f) in excess or (g) or for breaches of the ThresholdFundamental Representations, shall be the Purchase Price.
(c) The representations To the extent the E Sellers have any joint and warranties of the SunGard Entitiesseveral indemnification obligation pursuant to Section 12.02, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement Purchaser Indemnified Parties shall not survive the Closing; provided that provide to each E Seller (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes notice of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration its Pro Rata Share of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing such indemnification obligation and (ii) a reasonable opportunity to pay its Pro Rata Share thereof for a period of at least 30 days before pursuing the covenants and agreements contained in this Agreement and other E Seller for any Losses for which the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsnotified E Seller is primarily responsible.
(d) The Except as otherwise provided in Section 9.02(d), any obligations of the Sellers to indemnify and hold harmless a Party provide indemnification pursuant to Section 10.1(a12.02 shall first be satisfied from the funds remaining in the Escrow Account and second through direct payment by the Sellers (in accordance with the terms and subject to the limitations set forth herein).
(e) In calculating amounts payable to any Purchaser Indemnified Party, the amount of indemnified Losses shall be computed net of (i) payments actually received by the Purchaser Indemnified Parties under any insurance policy, and (ii) any amounts actually recovered by the Purchaser Indemnified Parties from any other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) third party with respect to such Losses. Each party to this Agreement shall terminate when the applicable representation, warranty or covenant terminates pursuant act in good faith and use commercially reasonable efforts to Section 10.2(c)mitigate any Losses for which it is entitled to indemnification hereunder; provided, however, that none of the parties shall be required to curtail, modify or make any other changes to its businesses or operations, commence any Legal Proceedings against a third party or incur any material out-of-pocket expenses in order to mitigate such obligations Losses.
(f) Subject to indemnify and hold harmless Section 12.05(g), the amount of any Losses of any Purchaser Indemnified Party shall not terminate be computed net of any Tax Benefits actually realized by any Purchaser Indemnified Party or its Affiliates by reason of such Loss to the extent such Tax Benefits are realized during or prior to the taxable year in which the Purchaser Indemnified Party receives such indemnification payment in connection with such Loss. For purposes of this Section 12.05(f), it shall be assumed that no Tax Benefits are derived with respect to any item as deductions realized by the Company that are allocated to members other than the Blocker Companies (or any successor entity).
(g) Notwithstanding Section 12.05(f), the amount of any Losses for which indemnification is provided under Section 12.02(h) shall be computed net of any Tax Benefits actually realized by any Purchaser Indemnified Party in any year. To the extent that a Loss is initially computed without regard to a Tax Benefit and a Purchaser Indemnified Party (or any of its Affiliates) subsequently realizes a Tax Benefit with respect to such Loss, the Purchaser shall pay the Seller Representative for the benefit of the Sellers the amount of such subsequently realized Tax Benefit. Such subsequently realized Tax Benefit will be paid within ten (10) days of filing the Tax Return with respect to which the SunGard Indemnified Party such Tax Benefit was actually realized (or Datatel Indemnified Party, as the case may be, to be indemnified ten (each, an “Indemnified Party”10) shall have, before the expiration days of the receipt of a refund, if the Tax Benefit is in the form of a refund). The Purchaser shall cooperate in good faith with the Seller Representative to realize any Tax Benefits as promptly as permitted under applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying PartyLaw.
Appears in 1 contract
Sources: Securities Purchase Agreement (Eagle Materials Inc)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated required to indemnify Datatel Buyer Indemnified Parties for aggregate Datatel Losses arising under this Agreement Section 8.02(a) unless and until (a) the Asset Purchase Agreement amount of a single Loss (or a series of related Losses) for which the Buyer Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.1(a8.02(a) exceeds $10,000 (other than Section 10.1(a)(v)an “Individual Minimum Loss”) and Section 10.1(a(b) the aggregate amount of all Losses which exceed the Asset Purchase Agreement in excess of an amount equal Individual Minimum Loss for which the Buyer Indemnified Parties are otherwise entitled to $1,775,000,000; provided that with respect to Datatel Losses indemnification pursuant to Section 10.1(a)(i8.02(a) exceeds the Indemnity Escrow Amount (the “Aggregate Minimum Loss”), SunGard Data and Seller shall not only be obligated to indemnify the Datatel Indemnified Parties responsible for aggregate Datatel Losses in excess of an amount equal the Aggregate Minimum Loss; provided, however, that the Individual Minimum Loss and the Aggregate Minimum Loss shall not apply to $177,500,000Losses from claims arising from Fraud or from any breach of any Fundamental Representation.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data In no event shall not Seller be obligated liable to indemnify the Datatel Buyer Indemnified Parties for aggregate Losses arising under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount8.02(a) in excess of the Threshold.
Indemnity Escrow Amount (c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c“Indemnification Cap”); provided, however, that such obligations the Indemnification Cap shall not apply to Losses from claims arising from Fraud or from any breach of any Fundamental Representation.
(c) In no event shall Seller be liable to indemnify the Buyer Indemnified Parties for aggregate Losses arising under Section 8.02, including Losses from claims arising from breach of any Fundamental Representation, in excess of the amount of the Purchase Price.
(d) Subject to the applicable limitations set forth in this Article VIII, including in this Section 8.04, and hold harmless except in the event of claims arising from Fraud:
(i) any Losses arising out of or under Section 8.02(a) (other than claims arising from a breach of a Fundamental Representation) shall not terminate be asserted by the Buyer Indemnified Parties, (x) first, against the Aggregate Minimum Loss (which, for the avoidance of doubt, shall apply only once with respect to indemnification under this Article XIII), (y) second, against the Indemnity Escrow Amount (to the extent available) and (z) third, after the Indemnity Escrow Amount has been exhausted (or claimed Losses exceed the Indemnity Escrow Amount) for any item as reason, against the R&W Insurance Policy;
(ii) any Losses arising out of or under Section 8.02(a) (solely with respect to claims arising from a breach of a Fundamental Representation) or Section 6.06(d) shall be asserted by the Buyer Indemnified Parties, (w) first, against the Aggregate Minimum Loss (which, for the avoidance of doubt, shall apply only once with respect to indemnification under this Article XIII) , (x) second, against the Indemnity Escrow Amount (to the extent available), (y) third, after the Indemnity Escrow Amount has been exhausted (or claimed Losses exceed the Indemnity Escrow Amount) for any reason, against the R&W Insurance Policy, if applicable, and (z) fourth, if the R&W Insurance Policy does not cover such Loss or the coverage thereunder is or becomes exhausted or is otherwise unavailable, directly against Seller;
(iii) any Losses arising out of or under Section 8.02(b) shall be asserted, (x) first, against the Indemnity Escrow Amount (to the extent available) and (y) second, after the Indemnity Escrow Amount has been exhausted (or claimed Losses exceed the Indemnity Escrow Amount) for any reason, or otherwise disbursed, directly against Seller; and
(iv) any Losses arising out of or under Section 8.02(c) may be asserted by the Buyer Indemnified Parties, in the sole discretion of Buyer, against (x) the Indemnity Escrow Amount (to the extent available) or (y) directly against Seller.
(e) In the event that any Claimant alleges that it is entitled to indemnification hereunder, and such claim is covered and permitted to be asserted under more than one provision of this Agreement (including without limitation more than one representation and warranty set forth in Article III or Article IV), such Claimant shall be entitled to elect the provision(s) under which it may bring such claim for indemnification. Notwithstanding the foregoing, if a Buyer Indemnified Party is entitled to indemnification pursuant to Section 8.02(b) for a Loss and such Loss can also be recovered based on a breach of representation and warranty set forth in Article III or Article IV, then the Buyer Indemnified Party (x) shall first bring a claim for indemnification under Section 8.02(a), and for the avoidance of doubt, to the extent of the balance of the Indemnity Escrow Amount, and (y) thereafter, if (but only if) the R&W Insurance Policy does not cover such Loss or the coverage thereunder is or becomes exhausted, may bring a claim for indemnification under Section 8.02(b).
(f) Except for Losses (i) from claims arising from Fraud, or (ii) from claims arising from any breach of any Fundamental Representation (x) for which the SunGard Losses are not covered by the R&W Insurance Policy or (y) in the aggregate amount exceeding the remaining policy limit of the R&W Insurance Policy (for the avoidance of doubt, taking into account all claims thereunder, including claims not related to any Fundamental Representations), claims made by the Buyer Indemnified Party Parties (A) against the Indemnity Escrow Amount and (B) against the R&W Insurance Policy, shall be the sole and exclusive remedy of the Buyer Indemnified Parties for any Losses arising under Section 8.02(a), and the Buyer Indemnified Parties shall have no right to make claims against, seek separate recourse against or Datatel Indemnified Partyseek rights of recovery from Seller for such Losses. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, as BUYER, ON BEHALF OF ITSELF AND THE OTHER BUYER INDEMNIFIED PARTIES, ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS IN THIS ARTICLE VIII CONTINUE TO APPLY IF: (A) THE R&W INSURANCE POLICY IS NOT OBTAINED OR IS REVOKED, CANCELLED OR MODIFIED, OR EXPIRES, IN ANY MANNER; OR (B) ALL AMOUNTS PERMITTED TO BE RECOVERED AGAINST THE R&W INSURANCE POLICY HAVE BEEN RECOVERED.
(g) For the case may bepurposes of determining the existence of any breach of or inaccuracy in any representation or warranty in this Agreement or in calculating Losses hereunder, each qualification to be indemnified a representation or warranty by use of the word “material” or “materially” (each, an “Indemnified Party”or similar qualification) shall havebe disregarded. In addition, before the expiration each qualification to a covenant, agreement or obligation by use of the applicable survival periodword “material” or “materially” (or similar qualification) shall be disregarded for purposes of calculating any Losses as a result of or arising out of a breach of or a failure to perform any covenant, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) agreement or obligation pursuant to the Indemnifying PartySection 8.02(b).
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Certain Limitations. The party making a claim under this ARTICLE VIII is referred to as the “Indemnitee,” and the party against whom such claims are asserted under this ARTICLE VIII is referred to as the “Indemnitor.” The indemnification provided for in Section 8.1 and Section 8.2 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Indemnitor shall not be obligated liable to indemnify Datatel Indemnified Parties the Indemnitee for aggregate Datatel Losses indemnification under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) 8.1 and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party8.2, as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 8.1 and Section 8.2 exceeds one percent (1%) of the Purchase Price (the “Deductible”), in which event the Indemnitor shall only be required to pay or be liable for Losses in excess of the Deductible. With respect to any claim as to which the Indemnitee may be entitled to indemnification under Section 8.1 and Section 8.2, as the case may be, the Indemnitor shall not be liable for any individual or series of related Losses which do not exceed $1,000 (which Losses shall not be counted toward the Deductible).
(b) The aggregate amount of all Losses for which an Indemnitor shall be liable pursuant to Section 8.1 and Section 8.2 as the case may be, shall not exceed Ten Percent (10%) of the Purchase Price.
(c) Payments by an Indemnitor pursuant to Section 8.1 and Section 8.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be indemnified received by the Indemnitee (eachor the Company) in respect of any such claim. The Indemnitee shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement.
(d) Payments by an “Indemnified Party”Indemnitor pursuant to Section 8.1 and Section 8.2 in respect of any Loss shall be reduced by an amount equal to any Tax benefit realized or reasonably expected to be realized as a result of such Loss by the Indemnitee.
(e) In no event shall haveany Indemnitor be liable to any Indemnitee for any punitive, before incidental, consequential, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the expiration breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(f) Each Indemnitee shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
(g) Seller shall not be liable under this ARTICLE VIII for any Losses based upon or arising out of any inaccuracy in or breach of any of the applicable survival period, previously made a claim by delivering a written notice (stating representations or warranties of Seller contained in reasonable detail the basis this Agreement if Buyer had knowledge of such claim) inaccuracy or breach prior to the Indemnifying PartyClosing.
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Sources: Stock Purchase Agreement (Future FinTech Group Inc.)
Certain Limitations. The indemnification provided for in Section 8.02 (Indemnification By Shareholders) and Section 8.03 (Indemnification By Buyer and Parent) shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Shareholders shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer Indemnitees for indemnification under Section 8.02 (Indemnification By Shareholders) until the aggregate Datatel amount of all Losses in respect of indemnification under this Agreement and Section 8.02 (Indemnification By Shareholders) exceeds $150,000 (the Asset Purchase Agreement “Basket”), in which event Shareholders shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Shareholders shall be liable pursuant to Section 10.1(a8.02 (Indemnification By Shareholders) shall not exceed Three Million Dollars ($3,000,000) (other than Section 10.1(a)(vthe “Cap”)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyer shall not be obligated liable to indemnify the Datatel Indemnified Parties Shareholder Indemnitees for indemnification under this Agreement Section 8.03 (Indemnification By Buyer and Parent) until the aggregate amount of all Losses in respect of indemnification under Section 8.03 (Indemnification By Buyer and Parent) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 10.1(a)(i8.03 (Indemnification By Buyer and Parent) with respect to any individual Datatel Loss or series shall not exceed the Cap, except for breach of related Datatel Losses of less than seventy-five thousand dollars Buyer’s obligations in Article II ($75,000) (the “Minimum Amount”Purchase and Sale) and unless and until Parent’s obligations in Section 5.08 (Parent Guaranty) for which Losses shall not exceed the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdAggregate Purchase Price.
(c) The representations and warranties of Notwithstanding the SunGard Entitiesforegoing, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties limitations set forth in Section 5.9 shall survive until sixty (608.04(a) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement 8.04(b) (Certain Limitations) above shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary apply to any Losses arising out of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement or related to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsIntentional Fraud.
(d) The obligations to indemnify and hold harmless For purposes of this Article VIII (Indemnification), the calculation of the amount of Losses arising as a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) result of any inaccuracy in or Section 10.1(b) (other than Section 10.1(b)(iii)) breach of any representation or warranty shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect be determined without regard to any item as materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to which the SunGard Indemnified Party such representation or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partywarranty.
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Certain Limitations. The liability of the Seller or the Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Notwithstanding anything contained herein to At any time after the contrarySurvival Date, SunGard Data (i) the Seller shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses have no further obligations under this Agreement Article IX for breaches of representations and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) warranties of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that Seller, except for Damages with respect to Datatel Losses pursuant which the Buyer Indemnitee has given the Seller written notice prior to such date in accordance with Section 10.1(a)(i)9.3 and (ii) the Buyer shall have no further obligations under this Article IX for breaches of representations and warranties of the Buyer, SunGard Data shall not be obligated except for Damages with respect to indemnify which the Datatel Indemnified Parties for aggregate Datatel Losses Seller Indemnitee has given the Buyer written notice prior to such date in excess of an amount equal to $177,500,000accordance with Section 9.3.
(b) Notwithstanding anything contained herein to the contrarycontrary herein, SunGard Data any claim by a Buyer Indemnitee against Seller pursuant to Section 9.1(a) shall not be obligated payable by Seller only in the event that the accumulated amount of Damages in respect of Seller's obligations to indemnify the Datatel Indemnified Parties Buyer Indemnitees under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars (shall exceed $75,000) 200,000 in the aggregate (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c"SELLER INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Seller shall exceed the Seller Indemnification Threshold, Seller shall thereafter be liable for any amount of Damages in excess of $100,000 suffered or incurred by the Buyer Indemnitees, it being the intention of the parties that any amount in excess of $100,000 of Damages comprising the Seller Indemnification Threshold shall be recoverable by Buyer against Seller in the event that the accumulated amount of Damages suffered by the Buyer Indemnitees shall exceed the Seller Indemnification Threshold.
(c) Notwithstanding anything to the contrary herein, in the absence of fraud or willful breach of this Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Seller in respect of any claims by the Buyer Indemnitees against Seller pursuant to Section 9.1(a) for Damages suffered or incurred by any Buyer Indemnitees exceed 20% of the value of the Purchase Price (as adjusted pursuant to Sections 2.4 and 2.5).
(d) Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply to claims for indemnification by Buyer Indemnitees against Seller in respect of (i) Excluded Liabilities pursuant to Section 9.1(b) or (ii) Taxes pursuant to Section 9.1(c).
(e) Notwithstanding anything to the contrary herein, any claim by a Seller Indemnitee against Buyer pursuant to Section 9.2(a) shall be payable by Buyer only in the event and to the extent that the accumulated amount of the Damages in respect of Buyer's obligations to indemnify and hold harmless under this Agreement shall exceed $200,000 in the aggregate (the "BUYER INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Buyer shall exceed the Buyer Indemnification Threshold, Buyer shall thereafter be liable for any amount of Damages in excess of $100,000 suffered or incurred by the Seller Indemnitees, it being the intention of the parties that any amount in excess of $100,000 of Damages comprising the Buyer Indemnification Threshold shall be recoverable by Seller against Buyer in the event that the accumulated amount of Damages suffered by the Seller Indemnitees shall exceed the Buyer Indemnification Threshold.
(f) Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not terminate with apply to claims for indemnification by Seller Indemnitees against Buyer in respect of (i) Assumed Liabilities pursuant to Section 9.2(b) or (ii) Taxes pursuant to Section 9.2(c).
(g) Notwithstanding anything to the contrary herein, in no event shall the maximum aggregate liability of Buyer in respect of any claims by the Seller Indemnitees against Buyer pursuant to Section 9.2(a) for Damages suffered or incurred by any Seller Indemnitees exceed 20% of the value of the Purchase Price (as adjusted pursuant to Sections 2.4 and 2.5).
(h) Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply, nor be limited in time to any item as to which claim by the SunGard Indemnified Party or Datatel Indemnified Party, as Buyer Indemnitees against the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration Seller in respect of inadequate funding of the applicable survival periodEmployee Funds by the Seller.
(i) Except as set forth in Section 9.4, previously made a claim by delivering a written notice (stating in reasonable detail the basis provisions of such claim) Article IX shall be the sole remedy to the Indemnifying PartyParties for breach of contract.
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Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer Indemnitees for indemnification under Section 8.02(a) until the aggregate Datatel amount of all Losses in respect of indemnification under this Agreement and Section 8.02(a) exceeds $25,000.00 (the Asset Purchase Agreement “Basket”), in which event Seller shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Seller Indemnitees shall be liable pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data 8.02 shall not be obligated to indemnify exceed the Datatel Indemnified Parties for aggregate Datatel Losses Escrow Share Amount held in excess of an amount equal to $177,500,000Escrow at that such time (the “Cap”).
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyer shall not be obligated liable to indemnify the Datatel Indemnified Parties Seller Indemnitees for indemnification under this Agreement Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 10.1(a)(i8.03(a) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (shall not exceed the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdCap.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties Notwithstanding anything else set forth in Sections 5.1 and 6.1 shall survive indefinitelythis Agreement, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties except as set forth in Section 5.9 shall survive until sixty (608.04(d) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 8.09 hereof, the Escrow Share Amount held in escrow by Escrow Agent shall survive until be the one year anniversary of the Closing. The covenants sole and agreements contained in this Agreement exclusive remedy for Buyer Indemnitees for all Losses for which Seller shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsliable.
(d) The obligations to indemnify Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)8.04(b) shall terminate when not apply to Losses based upon claims arising out of fraud, criminal activity or willful misconduct, in which case such Losses shall be limited solely to the applicable representationSeller and, provided that Seller and the Seller Affiliates did not participate in or have knowledge of such fraud prior to the date hereof, solely up to the Consideration Shares actually received by the Seller.
(e) For purposes of this Article VIII, the calculation of any Losses as a result of any inaccuracy in or breach of any representation or warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect be determined without regard to any item as materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to which the SunGard Indemnified Party such representation or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partywarranty.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data HSH shall not be obligated liable to indemnify Datatel Indemnified Parties HSMG Indemnitees for indemnification under Section 8.02 until the aggregate Datatel amount of all Losses in respect of indemnification under this Agreement and Section 8.02 exceeds $100,000 (the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i“Basket”), SunGard Data in which event HSH shall not be obligated required to indemnify the Datatel Indemnified Parties pay or be liable for aggregate Datatel all such Losses in excess of an amount equal to $177,500,000the Basket.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data HSMG shall not be obligated liable to indemnify the Datatel Indemnified Parties HSH Indemnitees for indemnification under this Agreement pursuant to Section 10.1(a)(i) 8.03 (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any individual Datatel Loss inaccuracy in or series breach of related Datatel Losses any of less than seventy-five thousand dollars ($75,000) Surviving Representations (the “Minimum AmountBasket Exclusions”)) and unless and until the aggregate Datatel amount of all Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such in respect of indemnification collectively exceed two million dollars ($2,000,000under Section 8.03(a) (the “Threshold”)other than those based upon, whereupon such indemnification shall be made by SunGard Data only arising out of, with respect to or by reason of the amount of Basket Exclusions) exceeds the Basket, in which event HSMG shall be required to pay or be liable for all such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdBasket.
(c) The representations Parties acknowledge and warranties agree that the maximum liability of HSH, on the one hand, and HSMG, on the other hand, for indemnification pursuant to this Article VIII shall be the sum of $1,000,000 (the “Cap”), and neither HSMG, on the one hand, nor HSH, on the other hand, shall have any liability to the other in excess of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsCap.
(d) The All liabilities and obligations of HSMG that may arise under Section 8.03 (“HSMG Indemnification Liabilities”), if any, will be satisfied via the issuance by HSMG of shares of HSMG Common Stock to indemnify the Shareholders of a number of shares of HSMG Common Stock valued at the Assumed HSMG Common Stock Value, as is equal in value to the amount of the HSMG Indemnification Liabilities, to be allocated amongst the Shareholders pro rata according to the number of shares of HSH Common Stock held by each Shareholder as of the Effective Time. Such transfer, and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when assignment will be deemed in full payment and satisfaction of the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate HSMG Indemnification Liabilities with respect to any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partypayment is being made.
Appears in 1 contract
Sources: Merger Agreement (Healthcare Solutions Management Group, Inc.)
Certain Limitations. The indemnification provided for in Section 11.2 and Section 11.3 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein Each party’s liability with respect to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) 11.2 and Section 10.1(a) of 11.3 shall be limited in the Asset Purchase Agreement in excess of aggregate to an amount equal to $1,775,000,000; provided that with respect to Datatel the Purchase Price. Notwithstanding the foregoing, Losses pursuant to Section 10.1(a)(i), SunGard Data arising from claims based upon Fraud shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000capped.
(b) Notwithstanding anything contained herein No Buyer Indemnitee will be entitled to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties indemnification under this Agreement for any Loss arising from a breach of any representation or warranty set forth in this Agreement (and the amount of any Loss incurred in respect of such breach will not be included in the calculation of any limitation on indemnification set forth in this Agreement) to the extent that such Loss or Liability (A) is accurately and specifically accrued, provided or reserved for, or otherwise reflected or taken into account in the Interim Financial Statements (but only to the extent of such accrual or reserve); (B) arises from any item or matter that is included or otherwise taken into account in or was specifically raised as part of the settlement of items of the Adjustment Statement (including, for the avoidance of doubt, those items set forth in the balance sheet included therewith delivered pursuant to Section 10.1(a)(i3.2(a)); or (C) with respect to any individual Datatel Loss arises out of changes in accounting principles or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (applicable Laws, rules, or regulations or interpretations thereof announced after the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdClosing Date.
(c) The representations and warranties Seller will not be required to indemnify any Buyer Indemnitee to the extent of any Losses that are determined by Final Adjudication to have resulted from the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI Fraud of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsa Buyer Indemnitee.
(d) The obligations Seller will not be required to indemnify any Buyer Indemnitee to the extent any Loss is contingent, unless and hold harmless a Party pursuant until such contingent Loss becomes an actual Loss of such Buyer Indemnitee that is due and payable; provided that, the foregoing shall not release Seller from its obligation under Article 11 (subject in all respects to Section 10.1(athe terms, conditions and limitations of this Article 11) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate Buyer for the cost of defending any Third Party Claims with respect to any item as contingent Losses which are brought and noticed in accordance with the requirements of this Article 11 prior to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made and Buyer Indemnitees shall have the right to make a claim by delivering for indemnification with respect to a written notice contingent Loss prior to the expiration of the applicable survival period set forth in Section 11.1, and if and to the extent such claim is duly noticed and the applicable Buyer Indemnitee states and advances the substance of the underlying claim (stating but not, for the avoidance of doubt, the amount of Losses, if the Losses remain contingent at such time) pursuant to the indemnification procedures set forth in reasonable detail this Article 11 prior to the basis expiration of the applicable survival period, Buyer Indemnitee shall be entitled to indemnification in respect of actual Loss incurred in respect of such claimclaim following the expiration of the applicable survival period, subject in all respects to the other terms of Article 11, notwithstanding the expiration of the applicable survival period. No Buyer Indemnitee will have the right to assert and (A) claim for indemnification of a Loss or (B) claim with respect to which such person has taken action (or caused action to be taken) to accelerate the Indemnifying Partytime period in which such matter is asserted or payable.
Appears in 1 contract
Certain Limitations. (ai) Notwithstanding anything contained herein to the contrary, SunGard Data (x) Seller shall not be obligated have no liability to indemnify Datatel the Buyer Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a9.2(a)(i) (other than Section 10.1(a)(v9.2(a)(ii)(x), or 9.2(a)(ii)(y) with respect to any claim or series of related claims thereunder unless and Section 10.1(a) until all Losses with respect to such claim or series of the Asset Purchase Agreement in excess of related claims exceed on a cumulative basis an amount equal to Twenty Five Thousand Dollars ($1,775,000,000; provided that 25,000) (such amount, the “Claims-Specific Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification pursuant to such provision, subject to the further limitations set forth in this Article IX, with respect to Datatel Losses such claim or series of related claims, (y) Seller shall have no liability to the Buyer Indemnified Parties pursuant to Section 10.1(a)(i9.2(a)(i) or Section 9.2(a)(ii)(y) with respect to any claims thereunder unless and until the total amount of all Losses of the Buyer Indemnified Parties with respect to such claims under such provisions (excluding claims that, in accordance with clause (x) above, do not satisfy the Claims-Specific Threshold (to the extent applicable to such claims)) exceed on a cumulative basis Four-Hundred Thousand Dollars ($400,000) (the “Deductible”), SunGard Data shall not be obligated to indemnify in which case the Datatel Buyer Indemnified Parties shall be entitled to indemnification pursuant to such provisions, subject to the further limitations set forth in this Article IX, with respect to such claims only for aggregate Datatel those Losses in excess of an amount equal the Deductible, and (z) the aggregate liability of Seller with respect to claims by the Buyer Indemnified Parties under Sections 9.2(a)(i), 9.2(a)(ii)(x) and 9.2(a)(ii)(y) shall not exceed Four Million Dollars ($177,500,0004,000,000) (the “Cap”). Notwithstanding anything to the contrary herein, the limitations contained in the first sentence of this Section 9.2(c)(i) shall not apply with respect to claims relating to or arising from (I) fraud or (II) any breach by Seller of any Fundamental Seller Representation.
(bii) Notwithstanding anything contained herein to the contrary, SunGard Data (x) Buyer shall not be obligated have no liability to indemnify the Datatel Seller Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i9.2(b)(i) or 9.2(b)(ii)(x) with respect to any individual Datatel Loss claim or series of related Datatel claims thereunder unless and until all Losses with respect to such claim or series of less than seventyrelated claims exceed on a cumulative basis an amount equal the Claims-five thousand dollars Specific Threshold, in which case the Seller Indemnified Parties shall be entitled to indemnification pursuant to such provision, subject to the further limitations set forth in this Article IX, with respect to such claim or series of related claims, ($75,000y) (Buyer shall have no liability to the “Minimum Amount”Seller Indemnified Parties pursuant to Section 9.2(b)(i) and with respect to any claims thereunder unless and until the aggregate Datatel total amount of all Losses (excluding individual Datatel Losses or related Datatel Losses less than of the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only Seller Indemnified Parties with respect to the amount of such Datatel Losses claims (excluding individual Datatel claims that, in accordance with clause (x) above, do not satisfy the Claims-Specific Threshold (to the extent applicable to such claims)) exceed on a cumulative basis the Deductible, in which case the Seller Indemnified Parties shall be entitled to indemnification pursuant to Section 9.2(b)(i), subject to the further limitations set forth in this Article IX, with respect to such claims only for those Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitationsDeductible, and (iiiz) the representations aggregate liability of Buyer with respect to claims by the Seller Indemnified Parties under Sections 9.2(b)(i) and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement 9.2(b)(ii)(x) shall not survive exceed the Closing; provided that (i) Cap. Notwithstanding anything to the covenants and agreements contrary herein, the limitations contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary first sentence of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)9.2(c)(ii) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate apply with respect to claims relating to or arising from (I) fraud, or (II) any item as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration breach by Buyer of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partyany Fundamental Buyer Representation.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ciber Inc)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein The aggregate amount of Losses for which the Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, shall be entitled to the contrary, SunGard Data indemnification pursuant to this Article VIII shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and exceed $100,000 (the Asset Purchase Agreement pursuant to Section 10.1(a) (“Indemnification Cap”), other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(ithe following: claims based on Fraud, criminal activity or willful misconduct of Seller (the claims described in clauses (i), SunGard Data shall not be obligated to indemnify (ii), and (iii), the Datatel Indemnified Parties for aggregate Datatel Losses “Seller Special Indemnification Matters”) and claims based on Fraud, criminal activity or willful misconduct of Buyer (the claims described in excess of an amount equal to $177,500,000clauses (i), (ii) and (iii), the “Buyer Special Indemnification Matters”).
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Seller shall not be obligated liable to indemnify the Datatel Buyer Indemnified Parties for indemnification under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and 8.02 unless and until the aggregate Datatel amount of Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such in respect of indemnification collectively under Section 8.02 exceed two million dollars ($2,000,000) 50,000 (the “Threshold”) (provided that any individual or series of related Losses which do not exceed $50,000 (“De-Minimis Losses”) shall not be counted towards the Threshold), whereupon such indemnification at which time the Buyer Indemnified Party shall be made by SunGard Data only with respect to indemnified for the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties Threshold up to the Cap, including, for the avoidance of the SunGard Entitiesdoubt, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving PreDe-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c)Minimis Losses; provided, however, that such obligations Losses to indemnify be paid solely from return of shares of stock held by Seller in Buyer; provided, further, that the Threshold and hold harmless the exclusion of De-Minimis Losses shall not terminate be applicable with respect to, and each Buyer Indemnified Party shall be entitled to be indemnified for, all Losses arising out of or resulting from the indemnification obligation with respect to any item as Seller Special Indemnification Matters. Buyer shall not be liable to the Seller Indemnified Parties for indemnification under Section 8.03 unless and until the aggregate amount of Losses in respect of indemnification under Section 8.03 exceeds the Threshold (provided that De-Minimis Losses shall not be counted towards the Threshold), at which time the SunGard Seller Indemnified Party or Datatel shall be indemnified for the amount of Losses in excess of the Threshold, including, for the avoidance of doubt, De-Minimis Losses; provided, however, that the Threshold and the exclusion of De-Minimis Losses shall not be applicable with respect to, and each Seller Indemnified Party, as the case may be, Party shall be entitled to be indemnified for, all Losses arising out of or resulting from the indemnification obligation with respect to Buyer Special Indemnification Matters.
(eachc) Payments by the Indemnifying Party (as defined in Section 8.05) pursuant to Article VIII in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, an “contribution or other similar payment actually received by the Indemnified Party”Party (as defined in Section 8.05) shall have, before the expiration in respect of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of any such claim.
(d) Notwithstanding the foregoing, in no event shall the Indemnifying Party be liable to the Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or any damages based on any type of multiple except to the extent adjudicated and owed to a third party with respect to a Third Party Claim.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss, including by pursuing insurance claims and claims against third parties, and shall reasonably consult and cooperate with the Indemnifying PartyParty with a view toward mitigating Losses upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise to Losses.
Appears in 1 contract
Sources: Asset Purchase Agreement (Agriforce Growing Systems Ltd.)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 (and with respect to Section 8.04(d), the indemnification provided for in Section 7.03(a)(i)) shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Sellers shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer Indemnitees for indemnification for Company/Seller Warranty Breaches until the aggregate Datatel amount of all Losses under this Agreement and in respect of Company/Seller Warranty Breaches exceeds US$60,000 (the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i“Basket”), SunGard Data in which event the Sellers shall not be obligated required to indemnify the Datatel Indemnified Parties pay or be liable for aggregate Datatel all Losses in excess of an amount equal the Basket; provided, the foregoing limitation shall not apply to $177,500,000Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of the Company Fundamental Warranties, or the Seller Fundamental Warranties, or in the case of fraud.
(b) Notwithstanding anything contained herein to The aggregate amount of all Losses for which the contrary, SunGard Data Sellers shall be liable for Company/Seller Warranty Breaches shall not be obligated exceed US$2,500,000 (the “General Cap”); provided, the foregoing limitation shall not apply to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) Losses based upon, arising out of, with respect to or by reason of any individual Datatel Loss inaccuracy in or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess breach of the ThresholdCompany Fundamental Warranties, the Seller Fundamental Warranties, or the Company Business Warranties, or in the case of fraud.
(c) The representations and warranties aggregate amount of all Losses for which the Sellers shall be liable for Company/Seller Warranty Breaches in respect of Company Business Warranties shall not exceed US$2,500,000; provided, the foregoing limitation shall not apply in the case of fraud. For clarity, the foregoing limitation does not apply to Company/Seller Warranty Breaches in respect of the SunGard EntitiesCompany Fundamental Warranties, or the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Seller Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsWarranties.
(d) The obligations aggregate amount of all Losses for which the Sellers shall be liable pursuant to indemnify Section 7.03(a)(i) and hold harmless Section 8.02 shall not exceed the Purchase Price (the “Aggregate Cap”); provided, the foregoing limitation shall not apply in the case of fraud.
(e) The Buyer shall not be liable to the Seller Indemnitees for indemnification for Buyer Warranty Breaches until the aggregate amount of all Losses in respect of Buyer Warranty Breaches exceeds the Basket, in which event the Buyer shall be required to pay or be liable for all Losses in excess of the Basket; provided, the foregoing limitation shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of the Buyer Fundamental Warranties or in the case of fraud.
(f) The aggregate amount of all Losses for which the Buyer shall be liable for Buyer Warranty Breaches shall not exceed the General Cap; provided, the foregoing limitation shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of the Buyer Fundamental Warranties or in the case of fraud.
(g) The aggregate amount of all Losses for which the Buyer shall be liable pursuant to Section 8.03 shall not exceed the Aggregate Cap; provided, the foregoing limitation shall not apply in the case of fraud.
(h) For purposes of determining whether there has been any misrepresentation or breach of a representation or warranty, and for purposes of determining the amount of Losses resulting therefrom, all qualifications or exceptions in any representation or warranty referring to the terms “material,” “materiality,” “in all material respects,” “Material Adverse Effect” or words of similar import shall be disregarded, except such words shall not be disregarded in uses of the defined terms “Material Contracts”.
(i) Payments by an Indemnifying Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) 8.02 or Section 10.1(b) 8.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party (other than Section 10.1(b)(iii)) shall terminate when increased by any costs and expenses incurred by the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate Indemnified Party with respect to any item as to which such recovery, and increased by Taxes of the SunGard Indemnified Party (or Datatel the Company, in the case of a Buyer Indemnitee) attributable to the receipt of any such proceeds) by the Indemnified Party (or the Company, in the case of a Buyer Indemnitee) in respect of any such Loss.
(j) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, but such Indemnified Party will not have a duty to incur any material costs in connection with the foregoing, and any out-of-pocket costs incurred by such Indemnified Party in connection with such mitigation shall constitute Losses that may be recovered by such Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Duddell Street Acquisition Corp.)
Certain Limitations. The party making a claim for indemnification under this Article IX is referred to as the “Indemnified Party” and the party against whom such claims are asserted under this Article IX is referred to as the “Indemnifying Party”. The indemnification provided for in Section 9.2 and Section 9.2(f) shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Sellers shall not be obligated to indemnify Datatel Indemnified Parties liable for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel any Losses pursuant to Section 10.1(a)(i9.2(a) unless and until the aggregate amount of all Losses for which the Buyer Indemnified Parties are entitled to indemnification therefor exceeds $50,000 (the “Claim Threshold Amount”), SunGard Data in which case the Buyer Indemnified Parties shall be entitled to indemnification for all Losses incurred by such Buyer Indemnified Parties regardless of the Claim Threshold Amount; provided, however, that the limitation set forth in this Section 9.4(a) shall not be obligated apply to indemnify Losses arising from fraud, willful misconduct or intentional misrepresentation on the Datatel Indemnified Parties for aggregate Datatel Losses part of any Seller in excess of an amount equal to $177,500,000connection with the transactions contemplated by this Agreement.
(b) The amount of all Losses for which the Sellers shall be liable pursuant to Section 9.2(a) shall be limited to $3,000,000, and the Holdback Amount and setoff against the Contingent Payments pursuant to Section 2.6(c) represent the sole and exclusive source of recovery for all Losses for which the Sellers shall be liable pursuant to Section 9.2(a), in each case other than Losses arising from fraud, willful misconduct or intentional misrepresentation on the part of the Company or any Seller in connection with the transactions contemplated by this Agreement. Notwithstanding anything contained herein any provision of this Agreement to the contrary, SunGard Data the liability of a Seller for indemnification under this Article IX shall not exceed a maximum amount equal to the amount actually received by such Seller under this Agreement, except in the case of fraud, willful misconduct, or intentional misrepresentation by such Seller, which shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to capped against such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdSeller.
(c) The representations amount of all Losses for which Buyer shall be liable pursuant to Section 9.3(a) shall be limited to $2,000,000, other than Losses arising from fraud, willful misconduct or intentional misrepresentation on the part of Buyer in connection with the transactions contemplated by this Agreement.
(d) Payments by an Indemnifying Party pursuant to Section 9.2 or Section 9.2(f) in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any (i) insurance proceeds or other collateral sources of recovery, (ii) indemnity, contribution or other similar payment actually received by the Indemnified Party (or the Company) in respect of any such claim, and warranties (iii) net cash Tax benefit actually realized by the Indemnified Party with respect to the taxable year in which the Loss was incurred or the immediately succeeding taxable year, after deducting all related reasonable and out-of-pocket attorneys’ fees, expenses and other costs of recovery (including any deductible amount) and any resultant increase in insurance premiums.
(e) Notwithstanding anything to the SunGard Entitiescontrary contained herein, the Sellers shall not be liable for any Losses related to or arising from the ability of Buyer, the Company and or any of their Affiliates to utilize any Tax attribute of the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive Company following the Closing; provided that .
(f) In no event shall any Indemnifying Party be liable to any Indemnified Party for (i) any punitive or special damages or any incidental or consequential damages that were not reasonably foreseeable or (ii) any punitive damages relating to the Fundamental Representations and breach or alleged breach of this Agreement, in each case except to the extent awarded to a third party.
(g) Notwithstanding anything in this Agreement to the contrary, for purposes of the indemnification obligations under this Article IX, all of the representations and warranties set forth in Sections 5.1 and 6.1 this Agreement, or any certificate or schedule, that are qualified as to “material,” “materiality,” “Material Adverse Effect” or words of similar import or effect shall survive indefinitely, (ii) solely be deemed to have been made without any such qualification for the purposes of Section 7.4(d)(i)(D)determining the amount of any Losses resulting from, the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitationsarising out of, and (iii) the representations and warranties set forth in Section 5.4(c)or relating to any such breach, Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date inaccuracy or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsmisrepresentation.
(dh) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or Datatel Indemnified Partycircumstance that would be reasonably expected to, as the case may beor does, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partygive rise thereto.
Appears in 1 contract
Certain Limitations. The party making a claim under this Article VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VIII is referred to as the “Indemnifying Party”. The indemnification obligations set forth in this Article VIII shall be subject to the following limitations:
(a) Notwithstanding anything contained herein No Seller shall have any obligation to directly satisfy any claim by an Indemnified Party for Losses as a result of any breach of any of the representations or warranties of the Company or the Sellers set forth herein. If Buyer has obtained the R&W Insurance Policy, a Buyer Indemnified Party may proceed against the R&W Insurance Policy for recovery of any such Losses described in the immediately preceding sentence (subject to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) terms of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(iR&W Insurance Policy), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein in this Agreement to the contrary, SunGard Data Buyer understands, acknowledges and agrees that (i) each Seller’s maximum liability hereunder for any indemnification claims under Section 8.02 (other than claims constituting Fraud) shall not be obligated to indemnify exceed the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(inet proceeds of the Purchase Price actually received by such Seller and (ii) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess total liability of the ThresholdSellers hereunder for any indemnification claims under Section 8.02 (other than claims constituting Fraud) shall not, when aggregated with all other indemnification obligations hereunder, exceed the Purchase Price.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement Each Indemnified Party shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitationstake, and (iii) cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until minimum extent necessary to remedy the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided breach that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement gives rise to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termssuch Loss.
(d) The obligations to indemnify Except as expressly provided in Section 8.02, no claim shall be brought or maintained by Buyer or any Acquired Company, or their respective successors or permitted assigns against any officer, director, manager, equityholder or employee (present or former) of any Seller, or any officer, director, manager or employee (present or former) of any Acquired Company, and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) no recourse shall be brought or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representationgranted against any of them, warranty by virtue of or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to based upon any item as to which the SunGard Indemnified Party alleged misrepresentation or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration inaccuracy in or breach of any of the applicable survival periodrepresentations or warranties of any Acquired Company or Seller set forth or contained in this Agreement or any Exhibit or Schedule hereto, previously made a claim except to the extent that the same shall have been the result of Fraud by delivering a written notice any such Person (stating and in reasonable detail the basis event of such claim) Fraud, such recourse shall be brought or granted solely against the Person or Persons committing such Fraud), and provided that, without limiting the foregoing, in no event shall Buyer, its successors or permitted assigns be entitled to claim or seek any rescission of the Indemnifying Partytransactions consummated under this Agreement or other remedy at Law or in equity.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (CPG Newco LLC)
Certain Limitations. (ai) Notwithstanding anything contained herein to the contrary, SunGard Data (x) Seller shall not be obligated have no liability to indemnify Datatel the Buyer Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a9.2(a)(i) (other than Section 10.1(a)(v)or 9.2(a)(ii) with respect to any Action or series of related Actions thereunder unless and Section 10.1(a) until all Losses with respect to such Action or series of the Asset Purchase Agreement in excess of related Actions exceed on a cumulative basis an amount equal to Ten Thousand Dollars ($1,775,000,000; provided that 10,000) (such amount, the “Claims-Specific Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification pursuant to such provision, subject to the further limitations set forth in this Article IX, with respect to Datatel Losses such Action or series of related Actions, (y) Seller shall have no liability to the Buyer Indemnified Parties pursuant to Section 10.1(a)(i9.2(a)(i) or 9.2(a)(ii) with respect to any Actions thereunder unless and until the total amount of all Losses of the Buyer Indemnified Parties with respect to such Actions under such provisions (excluding Actions that, in accordance with clause (x) above, do not satisfy the Claims-Specific Threshold (to the extent applicable to such Actions)) exceed on a cumulative basis One-Hundred Thousand Dollars ($100,000) (the “Basket”), SunGard Data in which event Seller shall be liable for all Losses irrespective of the Basket; provided, however, that even in the event the Basket is exceeded (and thereby rendered inapplicable for purposes of this Section 9.2(c)(i) thereafter) in accordance with the foregoing, all subsequent Actions or series of related Actions for Losses shall remain subject to the Claims-Specific Threshold in the manner set forth in this Section 9.2(c)(i), and (z) except as reflected in the last sentence of this Section 9.2(c)(i), the aggregate liability of Seller with respect to Actions by the Buyer Indemnified Parties under Sections 9.2(a)(i) and 9.2(a)(ii) shall not be obligated exceed Two Million Dollars ($2,000.000) (the “Cap”). Notwithstanding anything to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses contrary herein, the limitations contained in excess the first sentence of an amount equal this Section 9.2(c)(i) shall not apply with respect to $177,500,000Actions relating to or arising from (I) fraud, (II) the Excluded Liabilities, (III) any breach by Seller or the Selling Subsidiaries of any Fundamental Seller Representation, or (IV) any breach by Seller or the Selling Subsidiaries of any pre-Closing covenant identified on Annex III.
(bii) Notwithstanding anything contained herein to the contrary, SunGard Data (x) Buyer shall not be obligated have no liability to indemnify the Datatel Seller Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i9.2(b)(i) or 9.2(b)(ii) with respect to any individual Datatel Loss Action or series of related Datatel Actions thereunder unless and until all Losses with respect to such Action or series of less than seventyrelated Actions exceed on a cumulative basis an amount equal the Claims-five thousand dollars Specific Threshold, in which case the Seller Indemnified Parties shall be entitled to indemnification pursuant to such provision, subject to the further limitations set forth in this Article IX, with respect to such Action or series of related Actions, ($75,000y) (Buyer shall have no liability to the “Minimum Amount”Seller Indemnified Parties pursuant to Section 9.2(b)(i) and or 9.2(b)(ii) with respect to any Actions thereunder unless and until the aggregate Datatel total amount of all Losses (excluding individual Datatel Losses or related Datatel Losses less than of the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only Seller Indemnified Parties with respect to the amount of such Datatel Losses Actions (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard EntitiesActions that, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
clause (dx) The obligations above, do not satisfy the Claims-Specific Threshold (to indemnify and hold harmless a Party pursuant the extent applicable to Section 10.1(a) (other than Section 10.1(a)(vsuch Actions)) or Section 10.1(b) (other than Section 10.1(b)(iii)) exceed on a cumulative basis the Basket, in which event Buyer shall terminate when be liable for all Losses irrespective of the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c)Basket; provided, however, that such obligations even in the event the Basket is exceeded (and thereby rendered inapplicable for purposes of Section 9.2(c)(i) thereafter), all subsequent Actions or series of related Actions for Losses shall remain subject to indemnify the Claims-Specific Threshold in the manner set forth in this Section 9.2(c)(ii), and hold harmless shall not terminate (z) except as reflected in the last sentence of this Section 9.2(c)(ii), the aggregate liability of Buyer with respect to any item as to which Actions by the SunGard Seller Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”Parties under Sections 9.2(b)(i) and 9.2(b)(ii) shall have, before not exceed the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) Cap. Notwithstanding anything to the Indemnifying Partycontrary herein, the limitations contained in the first sentence of this Section 9.2(c)(ii) shall not apply with respect to Actions relating to or arising from (I) fraud, (II) any breach by Buyer or its Affiliates of any Fundamental Buyer Representation, or (III) any breach by Buyer or its Affiliates of any pre-Closing covenant identified on Annex III.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ciber Inc)
Certain Limitations. The rights of the Purchaser Indemnitees to indemnification pursuant to the provisions of Section 10.2, are subject to the following limitations:
(a) Notwithstanding anything contained herein to Except in the contrarycase of Fraud, SunGard Data the Selling Parties shall not be obligated to indemnify Datatel Indemnified Parties liable for indemnification claims under Section 10.2(a) unless the aggregate Datatel Losses under this Agreement and incurred by the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that Purchaser Indemnitees with respect to Datatel Losses pursuant all matters for which indemnification is to be provided under Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to 10.2(a) exceed $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) 100,000 (the “Threshold”), whereupon such upon which occurrence, the Selling Parties shall be jointly and severally liable under Section 10.2(a) for all Losses from the first dollar of the Loss.
(b) Except in the case of Fraud or pursuant to Section 10.6, the Purchaser Indemnitees’ sole and aggregate recourse for Losses under Section 10.2(a) with respect to General Representations to which the Purchaser Indemnitees are entitled to indemnification shall be made recovered in the following order of priority: (i) first, (x) by SunGard Data only with respect offset or reduction against the Deemed Earn-Out Amount, up to the Retention Amount, or (y) in the event that the amount available for offset or reduction against the Deemed Earn-Out Amount is not sufficient to fully satisfy the payment of the Retention Amount under the R&W Policy, the amount of such Datatel Losses deficit from the Selling Parties, jointly and severally, up to the remaining Retention Amount; and (excluding individual Datatel Losses or related Datatel Losses less than ii) finally, from the Minimum Amount) in excess of the ThresholdR&W Policy.
(c) The representations and warranties of the SunGard EntitiesExcept as provided for in Section 10.6, the Company Purchaser Indemnitees’ sole and aggregate recourse for Losses under Section 10.2(a) with respect to Fundamental Representations and Obligations and Section 10.2(h) (Fraud) to which the Datatel Entities contained Purchaser Indemnitees are entitled to indemnification shall be recovered in Articles IV, V and VI the following order of this Agreement shall not survive the Closing; provided that priority: (i) first, (x) by offset or reduction against the Fundamental Representations Deemed Earn-Out Amount, up to the Retention Amount, or (y) in the event that the amount available for offset or reduction against the Deemed Earn-Out Amount is not sufficient to fully satisfy the payment of the Retention Amount under the R&W Policy, the amount of such deficit from the Selling Parties jointly and severally up to the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, remaining Retention Amount; (ii) solely for purposes of Section 7.4(d)(i)(D)second, from the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and R&W Policy; (iii) third, by offset or reduction against the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving PreDeemed Earn-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed Out Amount in accordance with their terms.
Section 10.8; and (div) The obligations finally, up to indemnify the Initial Purchase Price from the Seller Parties, jointly and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c)severally; provided, however, that in the event that the Seller Parties do not fully satisfy all indemnification obligations pursuant to this Section 10.5(c) at the time the Earn-Out Amount becomes due and payable, then the Purchaser Indemnitees shall have the right to offset all or any amount of such deficiency by reducing the Earn-Out Amount payable to the Sellers Parties by such amount.
(d) Except as provided for in Section 10.6, the Purchase Indemnitees sole and aggregate recourse for under any provision of Section 10.2 other than Section 10.2(a) and 10.2(h) (Fraud) shall be recovered in the following order of priority: (i) first, (x) by offset or reduction against the Deemed Earn-Out Amount, up to the Retention Amount, or (y) in the event that the amount available for offset or reduction against the Deemed Earn-Out Amount is not sufficient to fully satisfy the payment of the Retention Amount under the R&W Policy, the amount of such deficit from the Selling Parties jointly and severally up to the remaining Retention Amount; (ii) second, from the R&W Policy; (iii) third, by offset or reduction against the Deemed Earn-Out Amount in accordance with Section 10.8; and (iv) finally, up to the Initial Purchase Price from the Seller Parties, jointly and severally; provided, however, that in the event that the Seller Parties do not fully satisfy all indemnification obligations pursuant to indemnify this Section 10.5(d) at the time the Earn-Out Amount becomes due and hold harmless payable, then the Purchaser Indemnitees shall have the right to offset all or any amount of such deficiency by reducing the Earn-Out Amount payable to the Sellers Parties by such amount.
(e) The limitations on recourse in Sections 10.5(b), 10.5(c) and 10.5(d) shall apply regardless of whether or not: (i) Purchaser maintains the R&W Policy in effect; (ii) in the case of General Representations, the entirety of such Losses is covered by the R&W Policy; (iii) any one or more of the Purchaser Indemnitees make a claim under the R&W Policy for such Losses; (iv) a claim under the R&W Policy is denied by the R&W Carrier; or (E) the R&W Policy has expired, lapsed, been terminated, revoked, cancelled or been modified in any manner after issuance not terminate resulting from any action or inaction of any Seller Party or the breach or nonperformance of any of his, her or its obligations hereunder; provided that Selling Parties shall, upon the request of Purchaser and at the sole cost of Purchaser, cooperate with Purchaser and the R&W insurer in any claim that may be filed by a Purchaser Indemnitee. Notwithstanding anything in this Agreement to the contrary, in the event that a Purchaser Indemnitee seeks recourse by raising a claim under the R&W Policy, and the Seller Parties fail to make payment of all or any portion of the Retention Amount payable by the Seller Parties in accordance with Sections 10.5(b)(i)(y), 10.5(c)(i)(y) or 10.5(d)(i)(y), if any, promptly to the Purchaser (but in any event within 60 days of any such amounts becoming payable under the R&W Policy) for further payment, or reimbursement, under the R&W Policy, then the Seller Parties shall be jointly and severally liable for all Losses associated with such claim.
(f) The amount of any Losses recoverable by a Purchaser Indemnitee pursuant to this Article 10 shall be calculated net of (i) any third party insurance proceeds actually received by the Purchaser Indemnitees on account of such Losses, net of the aggregate amount of all costs and expenses (including reasonable attorneys’ fees and expenses) of recovery or collection, including any deductibles, retentions or similar costs or payments and any retrospective increases in premiums solely to the extent attributable to such Losses (collectively, “Recovery Costs”), and (ii) any recoveries received by the Purchaser Indemnitees from any third party on account of such Losses, net of any fees and costs incurred by the Purchaser Indemnities in obtaining such recoveries. Prior to making a claim for indemnification hereunder, a Purchaser Indemnitee shall use its commercially reasonable efforts to seek recovery under all third party insurance policies (including, without limitation, under the R&W Policy) covering any Losses. In the event that an insurance recovery under a third party insurance policy, including the R&W Policy, is actually received by the Purchaser Indemnitees with respect to any item as to Losses for which the SunGard Indemnified Purchaser Indemnitees have been indemnified hereunder by the Selling Parties (including by a reduction of the Earn-Out Amount), then a refund shall be made to Selling Parties by the Purchaser Indemnitees in an amount equal to the lesser of (A) the aggregate amount of the insurance recovery actually received by the Purchaser Indemnitees, net of any Recovery Costs, and (B) the amount of the indemnification payment previously made by the Selling Parties with respect to such Losses (including by a reduction of the Earn-Out Amount). In the event that a third party indemnity payment is actually received by a Purchaser Indemnitee with respect to any Losses for which any Purchaser Indemnitee has been indemnified hereunder, then a refund shall be made to Selling Parties by the Purchaser Indemnitees in an amount equal to the lesser of (1) the aggregate amount of such third party indemnity payment actually received by the Purchaser Indemnitees, net of any fees and costs incurred by Purchaser Indemnitees to obtain such payment, and (2) the amount of the indemnification payment previously made by the Selling Parties respect to such Losses (including by a reduction of the Earn-Out Amount).
(g) Notwithstanding anything to the contrary set forth herein, no Indemnifying Party shall be liable under this Agreement for punitive or Datatel Indemnified Partyexemplary damages, as except to the case may be, extent actually paid to any unaffiliated third party pursuant to a third party claim.
(h) No Indemnifying Party shall be entitled to be indemnified (each, an “Indemnified Party”) shall have, before the expiration compensated more than once of the applicable survival periodsame Loss.
(i) The Purchaser Indemnitees shall use commercially reasonable efforts to mitigate their Losses provided that any costs of mitigation shall be deemed to be Losses hereunder.
(j) Unless otherwise set forth in this Article 10, previously any indemnification payments required to be made a claim by delivering a written notice (stating in reasonable detail under this Article 10 shall be made not later than 60 days after the basis date of such claim) to the Indemnifying PartyFinal Determination.
Appears in 1 contract
Sources: Asset Purchase Agreement (Phibro Animal Health Corp)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to Bloxbiz and the contrary, SunGard Data Founders shall not be obligated liable to indemnify Datatel Indemnified Parties the Buyer Indemnitees for indemnification under Section 8.02(a) until the aggregate Datatel amount of all Losses in respect of indemnification under this Agreement Section 8.02(a) exceeds Fifty Thousand and 00/100 Dollars (the "Basket"), in which event Sellers shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Bloxbiz and the Asset Purchase Agreement Founders shall be liable pursuant to Section 10.1(a8.02(a) (other than Section 10.1(a)(v)) and Section 10.1(a) for breaches of Seller Fundamental Reps shall not exceed the amount of the Asset Purchase Agreement in excess Price actually received by Seller (the "Fundamental Cap"); and the aggregate amount of an amount equal to $1,775,000,000; provided that with respect to Datatel all Losses for which Bloxbiz and the Founders shall be liable pursuant to Section 10.1(a)(i), SunGard Data 8.02(a) for breaches of Seller Non-Fundamental Reps shall not exceed $4,375,000. In no event will the Sellers be obligated to indemnify the Datatel Indemnified Parties liable for an aggregate Datatel of all Losses in excess of an the Fundamental Cap (except in the case of fraud). For the avoidance of doubt, any amounts of the Revenue Earnout accrued and earned shall be considered received for purposes of determining the amount equal to $177,500,000received under this ARTICLE VIII.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyer shall not be obligated liable to indemnify the Datatel Indemnified Parties Seller Indemnitees for indemnification under this Agreement Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 10.1(a)(i8.03(a) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (shall not exceed the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdFundamental Cap.
(c) The representations and warranties of Notwithstanding the SunGard Entitiesforegoing, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties limitations set forth in Section 5.9 shall survive until sixty (608.04(a) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement 8.04(b) shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary apply to Losses based upon, arising out of, with respect to or by reason of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsfraud.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) For purposes of this ARTICLE VIII, any inaccuracy in or Section 10.1(b) (other than Section 10.1(b)(iii)) breach of any representation or warranty shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect be determined without regard to any item as materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to which the SunGard Indemnified Party such representation or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partywarranty.
Appears in 1 contract
Sources: Asset Purchase Agreement (Super League Gaming, Inc.)
Certain Limitations. The party making a claim under this Article 8 is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article 8 is referred to as the “Indemnifying Party”. The indemnification provided for in Section 8.2(a) and Section 8.2(b) shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to Except in the contrarycase of Fraud, SunGard Data shall the Buyer Indemnified Parties, collectively, may not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel recover any Losses under this Agreement and the Asset Purchase Agreement pursuant to an indemnification claim under Section 10.1(a8.2(a)(i) (other than a claim in respect of a Company Fundamental Representation or in connection with VDA Losses) unless and until the Buyer Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $1,000,000 in Losses (the “Basket”) in the aggregate, at which time the Buyer Indemnified Parties shall be entitled to recover all Losses from the first dollar; provided, however, that no Buyer Indemnified Party shall be entitled to recover any individual Losses (or series of related Losses arising from a common set of facts) under Section 10.1(a)(v8.2(a)(i) unless and until such individual Losses (or series of related Losses arising from a common set of facts) for which they would otherwise be entitled to indemnification under Section 8.2(a)(i) exceed $10,000 (the “Mini-Basket”), and any such individual Losses (or series of related Losses arising from a common set of facts) and Section 10.1(a) not in excess of the Asset Purchase Agreement Mini-Basket will not be aggregated for purposes of calculating the Basket in this Section 8.3(a).
(b) Except in the case of Fraud, in no event shall the Buyer Indemnified Parties, collectively, recover any Losses pursuant to an indemnification claim under Section 8.2(a)(i) (other than a claim in respect of a Company Fundamental Representation) in excess of an amount equal to $1,775,000,000the Indemnity Holdback Amount. In connection with any claim for indemnification for which the Buyer Indemnified Parties are entitled to indemnification pursuant to Section 8.2 and subject to this Article 8, no Seller shall be liable for more than his, her or its Pro Rata Fraction of any Losses arising out of or resulting from such claim; provided that provided, however, with respect to Datatel Losses pursuant to Section 10.1(a)(i)a breach of a representation or warranty made solely by an individual Seller contained in Article 4, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses or a breach of a covenant solely by an individual Seller contained in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) or in any other Related Agreement (as contrasted with respect to any individual Datatel Loss a breach by the Company or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000the Sellers collectively) (the with each such individual Seller breach referred to herein as an “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “ThresholdIndividual Seller Breach”), whereupon such indemnification particular Seller shall be made by SunGard Data solely liable for all Losses arising only in connection with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdIndividual Seller Breach, and no other Seller shall be liable hereunder for any such Individual Seller Breach.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained Except in the Surviving Pre-Closing Covenants shall survive until the one year anniversary case of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein orFraud, if Sellers, collectively, may not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party recover any Losses pursuant to an indemnification claim under Section 10.1(a8.2(b)(i) (other than Section 10.1(a)(v)a claim in respect of a Buyer Fundamental Representation) unless and until Sellers, as a group, shall have paid, incurred, suffered or Section 10.1(b) (other than Section 10.1(b)(iii)) sustained Losses in excess of the Basket, at which time Sellers shall terminate when be entitled to recover all Losses from the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c)first dollar; provided, however, that no Seller shall be entitled to recover any individual Losses (or series of related Losses arising from a common set of facts) under Section 8.2(b)(i) unless and until such obligations individual Losses (or series of related Losses arising from a common set of facts) for which they would otherwise be entitled to indemnify indemnification under Section 8.2(b)(i) exceed the Mini-Basket, and hold harmless any such individual Losses (or series of related Losses arising from a common set of facts) not in excess of the Mini-Basket will not be aggregated for purposes of calculating the Basket in this Section 8.3(c).
(d) In no event shall the Liability of any Seller for all indemnification claims under this Agreement exceed the aggregate amount of Cash Consideration and Additional Consideration received or entitled to be received by such Seller, unless such indemnification claim is being made in respect of Fraud committed by such Seller or Fraud of which such Seller had actual knowledge (in which event there shall be no limitation on the Liability of such Seller hereunder or under applicable Law). In no event shall the Liability of Buyer for all indemnification claims under this Agreement exceed the aggregate amount of Cash Consideration and Additional Consideration.
(e) The amount of any Losses that are subject to indemnification under this Article 8 shall be calculated net of the amount of any insurance proceeds (including without limitation all tail insurance policies obtained in connection herewith), indemnification payments or reimbursements actually received by the Indemnified Party from third parties (other than the Sellers) in respect of such Losses (net of any reasonable and documented out-of-pocket costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments directly resulting from such recovery).
(f) For the avoidance of doubt, any Losses subject to indemnification under this Agreement shall be determined without duplication of recovery due to the facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement (including under any Related Agreement).
(g) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive damages or damages which are not terminate reasonably foreseeable, other than, in each case, as awarded to a third party.
(h) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate, only to the minimum extent required by applicable Law, any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent required by applicable Law to remedy the breach that gives rise to such Losses.
(i) Each party acknowledges and agrees that, other than with respect to any item as Related Agreement (which shall be subject to which the SunGard Indemnified Party terms and conditions thereof), such party’s sole and exclusive remedy with respect to any and all claims for any breach of any representation, warranty, covenant, agreement or Datatel Indemnified Partyobligation set forth herein or otherwise resulting from or arising out of this Agreement or the Transactions will be pursuant to the indemnification provisions set forth in this Article 8; provided, as that the case may beforegoing clause of this sentence shall not be deemed a waiver by any party of (i) any right to specific performance or injunctive relief, or (ii) any right or remedy with respect to be indemnified Fraud. Subject to the other limitations contained herein (eachincluding the obligation to mitigate damages set forth in Section 8.3(h)), an “Indemnified Party”) shall have, before the expiration obligations of the applicable survival periodSellers under this Article 8 shall not be reduced, previously made a claim offset, eliminated or subject to contribution by delivering a written notice (stating in reasonable detail reason of any action or inaction by any Group Company that contributed to any inaccuracy or breach giving rise to such obligation, it being understood that Sellers, not the basis of such claim) to Group Companies, shall have the Indemnifying Partysole obligation for the indemnification obligations under this Article 8.
Appears in 1 contract
Certain Limitations. (aThe indemnification provided for in Sections 7(a) Notwithstanding anything contained herein and 7(b) shall be subject to the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.following limitations:
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) The aggregate of the Fundamental Representations and sum of indemnification obligations of the Sellers under Section 7(b) shall be limited to the Buyer Common Stock constituting the Escrow Amount; provided, however, that in the case of fraud or a breach of the representations and warranties set forth in Sections 5.1 3(a)(i), 3(a)(ii), 3(a)(iv), 4(a), 4(b),4(d) and 6.1 4(l)(iii) the indemnification obligations of the Sellers under Section 7(b) shall survive indefinitely, be limited to the value of the entire Purchase Price as of the Closing Date.
(ii) solely for purposes The aggregate of the sum of indemnification obligations of the Buyer under Section 7.4(d)(i)(D)7(c) shall be limited to the value of the Buyer Common Stock constituting the Escrow Amount, valued as of the Closing Date; provided, however, that in the case of fraud or a breach of the representations and warranties set forth in Section 5.9 shall survive until sixty Sections 3(b)(i) - (60) days after v), the expiration indemnification obligations of the applicable statute Buyer under Section 7(c) shall be limited to the entire value of limitations, and the Purchase Price as of the Closing Date.
(iii) Notwithstanding anything to the representations and warranties set forth in Section 5.4(c)contrary, Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as representation, warranty, undertaking, agreement or obligation of the Company, each Seller’s liability in respect of any Losses out of any breach or failure indemnified hereunder in respect thereof shall be limited to which such Seller’s proportionate share of such Losses determined according to the SunGard Indemnified amount of Purchase Price actually received by such Seller. The Buyer hereby covenants not to make a claim against any Seller for Losses with respect to any breach or failure in respect of any representation, warranty, undertaking, agreement or obligation of the Company indemnified hereunder in excess of such Seller's proportionate share determined according to the amount of Purchase Price actually received by such Seller.
(iv) No Party or Datatel Indemnified Partyshall be entitled to recover from any other Party hereunder for the same Loss more than once.
(v) Neither the Buyer nor a Seller, as the case may be, shall be entitled to indemnification for any breach of a representation or warranty hereunder if Buyer or Seller, as applicable, had actual knowledge of such breach on or before Closing.
(vi) Notwithstanding anything to the contrary, with respect to any representation, warranty, undertaking, agreement or obligation of a particular Seller hereunder, as opposed to the Company, the Seller making such representation or warranty, or subject to such undertaking, agreement or obligation, shall be solely liable in respect of any Losses indemnified (eachhereunder in respect of any Losses arising out of any breach or failure. Buyer hereby covenants, an “Indemnified Party”) shall havewith respect to any representation, before warranty, undertaking, agreement or obligation of a particular Seller hereunder, as opposed to the expiration of the applicable survival periodCompany, previously made not to make a claim by delivering a written notice against any Seller for Losses with respect to any breach or failure in respect thereof other than against the particular Seller making such representation or warranty, or subject to such undertaking, agreement or obligation.
(stating in reasonable detail the basis of such claimvii) to the Indemnifying PartyIn no event shall Losses include any special, punitive, indirect, incidental or consequential damages whatsoever.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein to the contrary, SunGard Data The Seller Indemnitors shall not be obligated liable to indemnify Datatel Indemnified Parties Buyer Indemnitees for indemnification under Section 8.02(a) until the aggregate Datatel amount of all Losses in respect of indemnification under this Agreement and the Asset Purchase Agreement pursuant to Section 10.1(a8.02(a) exceeds One Hundred Thousand Dollars ($100,000) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i“Basket”), SunGard Data in which event Sellers shall not only be obligated required to indemnify the Datatel Indemnified Parties pay or be liable for aggregate Datatel Losses in excess of an the Basket. The aggregate amount equal of all Losses for which the Seller Indemnitors shall be liable pursuant to Section 8.02(a) shall not exceed One Million Dollars ($177,500,0001,000,000) (the “Cap”).
(b) Notwithstanding anything contained herein to the contrary, SunGard Data Buyer shall not be obligated liable to indemnify Sellers Indemnitees for indemnification under Section 8.03(a) until the Datatel Indemnified Parties aggregate amount of all Losses in respect of indemnification under this Agreement Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 10.1(a)(i8.03(a) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (shall not exceed the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the ThresholdCap.
(c) The representations and warranties of Notwithstanding the SunGard Entitiesforegoing, the Company limitations set forth in Section 8.04(a) and the Datatel Entities contained in Articles IV, V and VI of this Agreement Section 8.04(b) shall not survive the Closing; provided that apply to Losses based upon, arising out of, with respect to or by reason of, (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitelyfraud or willful or intentional misconduct or breach, (ii) solely any inaccuracy in or breach of any Fundamental Rep, or (iii) the Demand Claims, for purposes which the aggregate liability of Section 7.4(d)(i)(Dthe Seller Indemnitors under clauses (i), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitationsii), and (iii) shall be limited to the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsPrice.
(d) The obligations For purposes of this ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to indemnify and hold harmless a any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(e) No Losses may be claimed under Section 8.02 or Section 8.03 by any Indemnified Party to the extent such Losses are included in the calculation of any adjustment to the Purchase Price pursuant to Section 10.1(a2.02.
(f) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when the applicable representation, warranty or covenant terminates pursuant The amount to Section 10.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate which an Indemnified Party may become entitled hereunder with respect to any item as to which indemnified matter shall be reduced by the SunGard amount of insurance proceeds, if any, actually received by such Indemnified Party or Datatel Indemnified Party, as the case may be, with respect to be such indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying Partymatter.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Fat Brands, Inc)
Certain Limitations. The indemnification provided for in Section 8.2 shall be subject to the following limitations:
(a) Notwithstanding anything contained herein Each Selling Shareholder is entitled to the contraryclaim against any other Selling Shareholder for contribution, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement reimbursement, indemnification and the Asset Purchase Agreement pursuant to Section 10.1(a) (other than Section 10.1(a)(v)) and Section 10.1(a) of the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses pursuant to Section 10.1(a)(i), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000participation.
(b) Notwithstanding anything contained herein In no event shall any Selling Shareholder (other than Trinityville Profit Limited) (except in cases involving fraud or intentional misconduct of such Selling Shareholder) be liable to the contraryPurchaser in an amount greater than the sum of the Purchase Price and the Preferred Liquidation Premium, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement if any pursuant to Section 10.1(a)(i) with respect 2.7, actually received by such Selling Shareholder pursuant to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Thresholdthis Agreement for all claims under this Agreement.
(c) The representations In no event shall Trinityville Profit Limited and warranties the Founder (except in cases involving fraud or intentional misconduct) be liable to the Purchaser in an amount greater than the sum of the SunGard Entities, the Company Purchase Price and the Datatel Entities contained in Articles IVPreferred Liquidation Premium, V and VI of if any pursuant to Section 2.7, actually received by Trinityville Profit Limited pursuant to this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in all claims under this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termsAgreement.
(d) The In no event shall the Purchaser be liable to any Selling Shareholder and all Selling Shareholder Indemnitees related to such Selling Shareholder under this Agreement for an amount greater than one hundred percent (100%) of the Purchase Price actually received by such Selling Shareholder, and in no event shall the aggregate liability of the Purchaser towards the Selling Shareholder Indemnitees under this Agreement exceed one hundred percent (100%) of the Aggregate Purchase Price, except in cases involving fraud or intentional misconduct of the Purchaser and the payment obligations under Section 2.2 and Section 2.7.
(e) In no event shall any Indemnifying Party be liable to indemnify any Indemnified Party for indemnification under Section 8.2 for any punitive, incidental, consequential, special or indirect damages.
(f) Notwithstanding anything in this Agreement to the contrary, any Loss under this Article VIII shall be determined without giving effect to any qualification contained in any representation and hold harmless warranty as to materiality, including Material Adverse Effect.
(g) Notwithstanding anything in this Agreement to the contrary, the limitations on indemnification and liability set forth in this Section 8.3 shall not apply to a claim for Losses arising out of fraud or willful misconduct by any Party.
(h) For the avoidance of doubt, an Indemnified Party pursuant shall be entitled to Section 10.1(a) (other than Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when recover from the applicable Indemnifying Party under this Article VIII for any Losses incurred by such Indemnified Party arising out of or resulting from the breach of any representation, warranty warranty, covenant or covenant terminates pursuant to Section 10.2(c); providedagreement contained herein, howeveras applicable, that whether or not such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the SunGard Indemnified Party (or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”any of its Affiliates or Representatives) shall have, before the expiration had any knowledge of the applicable survival period, previously made a claim by delivering a written notice breach (stating in reasonable detail the basis or knowledge of such claimany other facts or circumstances relating thereto) on or prior to the Indemnifying Partydate hereof.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding The (i) maximum aggregate Liability pursuant to Section 10.1(a)(ii) and 10.1(b)(ii), in the aggregate, of the Selling Stockholders, other than with respect to the Tier I Reps, shall in no event exceed the value of the consideration in the Indemnification Escrow Account and (ii) maximum aggregate Liability pursuant to Article X of Buyer shall in no event exceed an amount equal to the aggregate amount of the net proceeds of the Merger Consideration actually paid to the Selling Stockholders. The maximum aggregate Liability, in the aggregate, of the Selling Stockholders together as a group, to the Buyer Group shall in no event exceed the aggregate amount of the Merger Consideration actually paid to the Selling Stockholders and each individual Selling Stockholder’s indemnification obligation shall be several and not joint and in no event shall any Selling Stockholder be liable for Damages, in the aggregate, in an amount greater than the amount of the Merger Consideration, taken as a dollar amount with each share of the stock portion thereof being valued at the Buyer Common Stock Per Share Price, to be received by such Selling Stockholder pursuant to this Agreement (including, as applicable, amounts received pursuant to the Employee Bonus Liquidity Plan). For the avoidance of doubt, all liability of the Selling Stockholders shall be several and not joint and the maximum Liability of any Selling Stockholder in respect of any particular item of Damage for which indemnification is sought by any member of the Buyer Group in accordance with the provisions of this Agreement after the distribution of all of the Indemnification Escrow Shares and Indemnification Escrow Funds held by or for the account of such Selling Stockholder shall not exceed the result obtained by multiplying (A) the aggregate monetary amount of such item of Damage by (B) a fraction, the numerator of which is the aggregate Merger Consideration issued or paid to such Selling Stockholder pursuant to this Agreement (including pursuant to the Employee Bonus Liquidity Plan) and the denominator of which is the Merger Consideration.
(b) Except with respect to Damages arising out of a breach of the Tier I Reps and the representations and warranties contained in Sections 6.1, 6.2 and 6.6 (and the certificates referred to above insofar as they relate to such Sections) (the “Non-Threshold Damages”), notwithstanding anything contained herein to the contrary, SunGard Data no indemnification payment shall not be obligated made to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement Buyer Group pursuant to Section 10.1(a10.1(a)(ii) (other than Section 10.1(a)(v)or 10.1(b)(ii) and Section 10.1(a) of or to the Asset Purchase Agreement in excess of an amount equal to $1,775,000,000; provided that with respect to Datatel Losses Stockholder Group pursuant to Section 10.1(a)(i10.2(b), SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties for aggregate Datatel Losses in excess of an amount equal to $177,500,000.
(b) Notwithstanding anything contained herein to the contrary, SunGard Data shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant to Section 10.1(a)(i) with respect to any individual Datatel Loss or series of related Datatel Losses of less than seventy-five thousand dollars ($75,000) (the “Minimum Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses amount of Damages sustained by the Buyer Group or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars (Stockholder Group, as the case may be, exceeds on a cumulative basis $2,000,000) 1,000,000 (the “Threshold”), whereupon such indemnification at which time the full aggregate amount of the Damages sustained (including the full amount of Damages that were aggregated in calculating whether the Threshold had been reached) by the Buyer Group or the Stockholder Group, as the case may be, shall be made by SunGard Data only with respect to paid. For the amount avoidance of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than doubt, it is understood and agreed among the Minimum Amount) Parties that Non-Threshold Damages shall not be taken into account in excess determining whether the Threshold has been met for purposes of the Thresholdthis Section 10.3(b).
(c) The representations Each and warranties every representation and warranty of the SunGard EntitiesCompany, the Company and the Datatel Entities Buyer, Merger Sub 1 or Merger Sub 2 contained in Articles IV, V and VI of this Agreement or in any certificate delivered pursuant to Sections 4.8(a)(ii), 4.8(a)(iii) and 4.8(b)(iii) shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) Closing Date solely for purposes of Section 7.4(d)(i)(D)this Article X until, and will expire upon, the conclusion of the Escrow Period, and no member of the Buyer Group or the Stockholder Group shall have any Liability whatsoever with respect to any such representations and warranties set forth thereafter, except with respect to claims made in Section 5.9 accordance with the terms hereof prior to the conclusion of the Escrow Period. Notwithstanding the foregoing, the Tier I Reps shall survive until sixty (60) days after the expiration Closing Date solely for purposes of this Article X until, and will expire on, the date that is the third anniversary of the Closing Date, other than with respect to claims made prior to such expiration. Each and every covenant contained in this Agreement will survive the Closing Date until, and will expire when, in each case, the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their termslimitations has expired.
(d) The obligations of each Party to indemnify indemnify, defend and hold harmless a the other Party and other Persons pursuant to Section 10.1(athis Agreement (including, without limitation, this Article X) shall terminate (other than Section 10.1(a)(v)with respect to claims made prior to expiration) or Section 10.1(b) (other than Section 10.1(b)(iii)) shall terminate when with respect to Sections 10.1 and 10.2 upon the expiration of the applicable representationsurvival periods as set forth in Section 10.3(c).
(e) Notwithstanding anything contained in this Agreement, warranty or covenant terminates any amounts payable pursuant to the indemnification obligations hereunder shall be paid without duplication, and in no event shall any Party be indemnified under different provisions of this Agreement for the same Damages. Any amounts payable to the Buyer Group as Damages pursuant to this Agreement shall first be paid from the Escrow Account, to the extent available, and shall thereafter be paid directly (severally and not jointly) by the Selling Stockholders in accordance with the limitations set forth in Section 10.2(c10.3(a). In calculating Damages for purposes of this Article X, any materiality qualifiers (including Material Adverse Effect) contained in the applicable representation and warranty shall be deemed to be deleted and shall be given no force or effect.
(f) The amount of any Damages with respect to which an Indemnified Party may be entitled to indemnification under this Agreement shall be net of the amount of any insurance proceeds or contributions from third parties actually recovered by such Indemnified Party in connection with such Damages; provided, however, that notwithstanding the foregoing, no Indemnified Person shall have any obligation or duty to seek to recover any such obligations insurance proceeds of contributions from third parties.
(g) The Parties agree to indemnify and hold harmless shall not terminate with respect treat any payment made pursuant to any item this Article X as to which the SunGard Indemnified Party or Datatel Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall have, before the expiration adjustment of the applicable survival periodMerger Consideration for Tax and, previously made a claim if applicable, other purposes and to take no position contrary thereto on Tax Returns, unless otherwise required by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying PartyLaw.
Appears in 1 contract
Certain Limitations. (a) Notwithstanding anything contained herein to The obligations of the contrary, SunGard Data shall not be obligated to indemnify Datatel Indemnified Parties for aggregate Datatel Losses under this Agreement and the Asset Purchase Agreement Seller in respect of Purchaser Indemnity Claims pursuant to Section 10.1(a8.02(a) (other than Purchaser Indemnity Claims in respect of a breach of any Fundamental Representations or Tax Representations or that arise from intentional fraud by the Seller, which shall not be subject to the limitations set forth in this Section 10.1(a)(v8.05(a)) (“Covered Purchaser Indemnity Claims”) shall become operative and Section 10.1(aeffective only if and to the extent that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Covered Purchaser Indemnity Claims exceeds one percent (1%) of the Asset Purchase Agreement in excess Price (the “Basket Amount”). Covered Purchaser Indemnity Claims shall accumulate until such time as the aggregate amount of an amount equal to $1,775,000,000; provided that with respect to Datatel all Losses pursuant to Section 10.1(a)(i)arising therefrom exceeds the Basket Amount, SunGard Data at which time the Seller shall not be obligated to indemnify the Datatel Indemnified Parties for applicable Indemnitees against such Losses, but only to the extent the aggregate Datatel Losses in excess of an amount equal to $177,500,000thereof exceeds the Basket Amount.
(b) Notwithstanding anything contained herein The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) (other than Seller Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from intentional fraud by the Purchaser, which shall not be subject to the contrarylimitations set forth in this Section 8.05(b)) (“Covered Seller Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Covered Seller Indemnity Claims exceeds the Basket Amount. Covered Seller Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, SunGard Data at which time the Purchaser shall not be obligated to indemnify the Datatel Indemnified Parties under this Agreement pursuant applicable Indemnitees against such Losses, but only to Section 10.1(a)(ithe extent the aggregate amount thereof exceeds the Basket Amount.
(i) with The maximum obligation of the Seller to provide indemnification in respect to any individual Datatel Loss or series of related Datatel Losses Covered Purchaser Indemnity Claims shall not exceed ten percent (10%) of less than seventy-five thousand dollars ($75,000) the Purchase Price (the “Minimum Cap Amount”) and unless and until the aggregate Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) subject to such indemnification collectively exceed two million dollars ($2,000,000) (the “Threshold”), whereupon such indemnification shall be made by SunGard Data only with respect to the amount of such Datatel Losses (excluding individual Datatel Losses or related Datatel Losses less than the Minimum Amount) in excess of the Threshold.
(c) The representations and warranties of the SunGard Entities, the Company and the Datatel Entities contained in Articles IV, V and VI of this Agreement shall not survive the Closing; provided that (i) the Fundamental Representations and the representations and warranties set forth in Sections 5.1 and 6.1 shall survive indefinitely, (ii) solely for purposes of Section 7.4(d)(i)(D), the representations and warranties set forth in Section 5.9 shall survive until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) the representations and warranties set forth in Section 5.4(c), Section 5.20 and Section 5.21 shall survive until the one year anniversary of the Closing. The covenants and agreements contained in this Agreement shall not survive the Closing; provided that (i) the covenants and agreements contained in the Surviving Pre-Closing Covenants shall survive until the one year anniversary of the Closing and (ii) the covenants and agreements contained maximum obligation of the Seller to provide indemnification in this Agreement and the Asset Purchase Agreement to be performed after the Closing shall survive until the date or dates explicitly specified therein or, if not so specified, until performed in accordance with their terms.
(d) The obligations to indemnify and hold harmless a Party respect of Purchaser Indemnity Claims pursuant to Section 10.1(a8.02(a) (other than and Section 10.1(a)(v)) or Section 10.1(b) (other than Section 10.1(b)(iii)8.02(b) shall terminate when not exceed the applicable representation, warranty or covenant terminates pursuant to Section 10.2(c)Purchase Price; provided, however, that such obligations to indemnify and hold harmless the limitations in this clause (ii) shall not terminate apply to any Purchaser Indemnity Claim pursuant to Section 8.02(b) with respect to the Seller’s obligations and agreements in Section 1.05 and Section 1.06.
(d) (i) The maximum obligation of the Purchaser to provide indemnification in respect of Covered Seller Indemnity Claims shall not exceed the Cap Amount and (ii) the maximum obligation of the Purchaser to provide indemnification in respect of Seller Indemnity Claims pursuant to Section 8.03(a) and Section 8.03(b) shall not exceed the Purchase Price; provided, however, that the limitations in this clause (ii) shall not apply to any item as Seller Indemnity Claim pursuant to which Section 8.03(b) with respect to the SunGard Indemnified Party Purchaser’s obligations and agreements in Section 1.05, Section 1.06, Section 5.17(c), Section 5.19(e) and Section 5.19(f).
(e) The obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Purchaser Indemnity Claim pursuant to Section 8.02(a) or Datatel Indemnified Partyseries of aggregated Purchaser Indemnity Claims pursuant to Section 8.02(a) arising out of the same or similar facts, events or circumstances exceeds $75,000 (the “De Minimis Threshold”), and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount.
(f) The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Seller Indemnity Claim pursuant to Section 8.03(a) or series of aggregated Seller Indemnity Claims pursuant to Section 8.03(a) arising out of the same or similar facts, events or circumstances exceeds the De Minimis Threshold, and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount.
(g) Each of the parties hereby acknowledges and agrees that the limitations provided for in paragraphs (a) and (b) above apply only to Covered Purchaser Indemnity Claims or Covered Seller Indemnity Claims (as the case may be), and do not apply to any other rights to indemnification provided for in this Article VIII, including rights to indemnification against Retained Liabilities or Assumed Liabilities (as the case may be).
(h) Any Losses for which any Indemnitee would be entitled to indemnification under this Article VIII shall be reduced by (i) any cash payments, setoffs or recoupment of any payments in each case receivable, realizable or retainable by such Indemnitee (including any amounts recovered or recoverable by the Indemnitee under insurance policies, including the Title Policies) or (ii) any Tax Benefit actually realized in the taxable year of such Loss or a prior taxable year, in each case as a result of any event giving rise to an Indemnity Claim. Each Indemnitee shall as promptly as practicable pay over to the Indemnitor any amounts actually recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of any amount previously so paid by the Indemnitor to or on behalf of the Indemnitee in respect of such Loss.
(i) The obligations of the Seller in respect of Purchaser Indemnity Claims shall not become operative and effective to the extent arising from (A) the conduct by the Purchaser or any of its Affiliates, employees, representatives or agents of any invasive or destructive sampling or assessment of any soil or groundwater at any of the Real Property unless such sampling or assessment (1) is required to be indemnified undertaken pursuant to any applicable Environmental Law or Order, (each2) arises in the ordinary course of business out of repairs, an “Indemnified Party”modifications, maintenance activities, construction or other capital projects, in each case relating to the Assets or Transferred Business and conducted consistent with industry practices or (3) shall have, before the expiration arises in response to a requirement of a Governmental Authority or a financing source of the Purchaser or its Affiliates; (B) any material change made by the Purchaser in the scope of use of any Real Property (including the change resulting from the decommissioning, closure or shutdown of any facility) such that the Real Property is no longer used for similar industrial purposes; or (C) any conduct by the Purchaser or any of its Affiliates, employees, representatives or agents not consistent with that of a reasonable and prudent business person who owns the applicable survival period, previously made a claim Real Property (without consideration of the benefit of any indemnification provided by delivering a written notice (stating in reasonable detail the basis of such claim) to the Indemnifying PartySeller).
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