Indemnification by the Seller. (a) The Seller shall indemnify the Purchaser and its directors, officers, employees and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person (other than any Losses relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (i) any breach of any representation or warranty of the Seller contained in this Agreement (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) any breach of any covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation.
Appears in 1 contract
Indemnification by the Seller. (a) The From and after the Closing, subject to the limitations set forth in Section 11.3, the Seller shall be liable for and pay, and shall indemnify the Purchaser Buyer Indemnitees against, any and all Damages arising out of (i) (A) Taxes of any Acquired Company for taxable periods (or portions thereof) ending on or before the Closing Date (“Pre-Closing Taxes”) and (B) Taxes of the Seller and its directorsAffiliates (other than the Acquired Companies) for any taxable period and (ii) without duplication, officers(A) Taxes of any member of an affiliated, employees consolidated, combined or unitary group of which an Acquired Company is or was a member on or prior to the Closing Date by reason of Liability under Regulations Sections 1.1502-6 or 1.1502-78 or a comparable provision of foreign, state or local Tax Law, (B) the failure of any of the representations or warranties contained in Section 4.16 to be true and Affiliates againstcorrect (determined without regard to any qualification related to “materiality” or “Material Adverse Effect” contained therein), (C) breaches by the Seller of any covenant in Section 6.1(i) or Section 11.8 (including, for the avoidance of doubt, any and all Damages with respect to Tax deductions or similar Tax assets as a result of a breach by the Seller of Section 4.16(m) or Section 11.8(h) or (m)), (D) Taxes attributable to the Pre-Closing Restructuring and (E) Taxes attributable to the Approved Restructuring in excess of amounts that would have been incurred in the absence of such Approved Restructuring. Notwithstanding the foregoing, (w) without duplication of Section 11.3(c)(i), the Seller shall not be obligated to indemnify the Buyer Indemnitees under this Section 11.8(b) with respect to any Tax liabilities to the extent reflected and included in the Final Closing Statement, (x) for the avoidance of doubt, the Seller shall not indemnify and hold each harmless the Buyer Indemnitees pursuant to this Section 11.8(b) against any Damages arising out of them harmless fromany Taxes that are attributable to any Buyer Tax Act or to any breach by the Buyer of any covenant in Section 11.8, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damagesy) (collectively, for purposes of this Article 12Section 11.8(b), "Losses") suffered or incurred by any such Indemnified Person (other than any Losses relating to Taxes, Taxes shall include the amount of Taxes that would have been paid but for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (i) any breach application of any representation credit or warranty of the Seller contained in this Agreement net operating loss or capital loss deduction attributable to any taxable period (other than in Section 3.24or portion thereof) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of beginning after the Closing Date and (except to z) if an Asset Acquisition Election is not made, the extent an earlier date is specified in such representations Seller’s aggregate payment obligations under Sections 11.8(e)(i) and warranties)) or (ii) any breach and this Section 11.8(b) shall be reduced, but not below zero, by the amount of any covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished Tax savings realized by the Purchaser to Buyer Indemnitees in the Seller; PROVIDEDtaxable year beginning immediately after the Closing Date, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken deductions or omitted credits attributable to be taken by the Purchaser payment or any exercise of its Affiliates other than those actions stock options or omissions arising out restricted stock units described in Sections 4.13(a)(57) through (87) of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationDisclosure Letter.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fifth & Pacific Companies, Inc.)
Indemnification by the Seller. Subject to the limitations on indemnification set forth in Sections 5.5, 5.6 and 5.7 hereof and elsewhere in this Agreement, from and after the Closing Date, the Seller shall, from and to the extent of the Escrow Fund (a) The Seller shall as defined in the Escrow Agreement), indemnify and hold harmless the Purchaser and each of the Purchaser Subsidiaries (which shall be deemed to include the Company after the Closing Date) and its directorsagents, representatives, employees, officers, employees directors, successors, controlling persons and Affiliates againstaffiliates (in their capacities as such) (collectively, the "Purchaser Indemnitees"), and hold each of them harmless fromshall reimburse the Purchaser Indemnitees, for any loss, liability, claimdamage, damage or expense (including reasonable legal fees and expensesincluding, but excluding any consequential not limited to, reasonable costs of investigation and defense and reasonable attorneys' fees), whether or special damages) not involving a third-party claim (collectively, for purposes of this Article 12"Damages"), "Losses") suffered or incurred by any such Indemnified Person the Purchaser Indemnitees as a result of (other than any Losses relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (ia) any breach inaccuracy in any of any representation or warranty the representations and warranties of the Seller contained in Article II of this Agreement (other than in Section 3.24) as modified by the Company Schedule and any update or in any certificate, instrument or other document supplement to the Company Schedule delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Purchaser prior to the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) any breach of any covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent such update or supplement relates to events occurring or discovered after the date of this Agreement), (b) any such excess; PROVIDED FURTHER, HOWEVER, that failure of the Company or the Seller shall not have to perform or comply with any liability post- Closing agreement or covenant to be performed or complied with by it under clause this Agreement, or (ic) above to the extent that the sum any claim by any person for brokerage or finder's fees or similar payments in connection with any of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that transactions contemplated hereunder as the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken brokers, finders or omitted to be taken investment bankers retained by the Purchaser Company or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationParent Shareholder.
Appears in 1 contract
Indemnification by the Seller. (a) The Seller shall hereby agrees to indemnify and hold SABI, the Purchaser and its Buyer, their officers, directors, officersemployees, employees agents and Affiliates againstaffiliates (collectively, the "Buyer Indemnified Parties") harmless from any and hold each of them harmless fromall liabilities, any losslosses, liabilityclaims, claimjudgments, damage or expense damages, expenses and costs (including including, without limitation, reasonable legal counsel fees and expenses, but excluding any consequential or special damagescosts and expenses incurred in connection therewith) (collectively, for purposes of this Article 12, the "LossesIndemnifiable Damages") suffered which it may suffer or incurred incur by reason of (i) the breach or inaccuracy of any such Indemnified Person of the representations and warranties of the Seller or Principals contained in this Agreement, (other than ii) the breach by the Seller or Principals of any Losses relating of the covenants or agreements made by it, (iii) any misrepresentation contained in any certificate furnished by the Seller or Principals pursuant to Taxesthis Agreement, for which indemnification provisions are (iv) any claims against or liabilities or obligations of the Seller or Principals arising prior to the date hereof not specifically assumed by the Buyer pursuant to the Agreement (including but not limited to any claims with respect to the Excluded Liabilities set forth in Section 7.4(a1.5 hereof)) ; provided, however, notwithstanding the provisions of this Section 8.1(a), the Seller will not be obligated to indemnify, defend or hold harmless the extent arising Buyer Indemnified Parties from or against any Indemnifiable Damages incurred by reason of matters enumerated in (i) any breach through (iii) above until the aggregate amount of any representation or warranty Indemnifiable Damages exceeds One Hundred Thousand Dollars ($100,000.00) (the "Threshold"), after which the amount of all Indemnifiable Damages (including those consisting the $100,000.00) shall be subject to indemnity by the Seller; provided further, however, that the Threshold shall not apply with respect to breaches of the Seller contained in this Agreement (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) any breach of any covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a3.22 (Balance Sheet Amounts) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy or with respect to any and all claims relating to breaches of the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions covenants set forth in this Section 12.1(a) and Section 7.4(a) 5.6 (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation.
Appears in 1 contract
Indemnification by the Seller. (a) The Seller shall indemnify and hold harmless the Purchaser from and against all losses, claims, taxes, assessments, demands, damages, liabilities, obligations, costs and/or expenses (hereinafter referred to collectively as the "Purchaser's Damages"), including, without limitation, Purchaser's Counsel Expenses (as hereinafter defined), sustained or incurred by the Purchaser (or its designee) in any action, claim or proceeding (i) between the Purchaser and its directors, officers, employees and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person (other than any Losses relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (i) any breach of any representation or warranty of the Seller contained in this Agreement (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) between the Purchaser and any third party or (iii) otherwise (a) arising out of or relating to the breach of any covenant of the obligations, covenants or provisions of, or the inaccuracy of any of the representations or warranties made by the Seller herein or (b) arising out of or relating to any liabilities or obligations of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDEDare not Assumed Liabilities including, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable lawwithout limitation, any and all rightssales, claims use, transfer, corporate, payroll, and/or business and causes mercantile taxes, penalties, and interest, owed to the Commonwealth of Pennsylvania and/or Marpxx Xxxnship, and any and all fees incurred in connection with the Assignment of Lease. For purposes hereof, "Purchaser's Counsel Expenses" shall mean reasonable fees and disbursements of counsel howsoever sustained or incurred by the Purchaser (or its designee), including, without limitation, in any action (other than claims ofor proceeding between the Purchaser and any third party. In addition to the right of the Purchaser to indemnification hereunder, or causes the Purchaser shall have the right from time to time to set off the amount of action arising fromany of the Purchaser's Damages that the Purchaser is entitled to indemnification thereof against any Contingent Payments. In the event that the Purchaser exercises its right under this Section VIII(A) to set off the amount of any of the Purchaser's Damages against any Contingent Payment and the Seller disputes the validity of the Purchaser's Damages, fraudthe Purchaser agrees to place such disputed amount in an escrow account to be held by Haytxx & Xurlxx xxxil the dispute is resolved pursuant to the terms of this Section VIII(A) it, may have against and Section XI(F) hereof. Any amounts set off by the Purchaser which are later awarded to the Seller in accordance with Section XI(F) hereof shall accrue interest at a rate of 8% per annum from the time of any such set off and shall include reasonable fees and disbursements of counsel incurred by the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation.. 38 30
Appears in 1 contract
Indemnification by the Seller. Without limiting any other rights that the Administrative Agent, the Purchaser Parties, the other Secured Parties and their respective assigns, officers, directors, agents and employees (each, a “Seller Indemnified Party”) may have hereunder or under applicable Law, the Seller hereby agrees to indemnify each Seller Indemnified Party from and against any and all claims, losses and liabilities (including Attorney Costs; provided that, so long as no Event of Default is continuing, such Attorney Costs shall be limited to those of not 117 more than one firm of counsel for all such Seller Indemnified Parties, taken as a whole, and, if necessary, a single local firm of counsel in each appropriate jurisdiction for all such Seller Indemnified Parties, taken as a whole (and, in the case of an actual or perceived conflict of interest, of another firm of counsel for such affected Seller Indemnified Party)) (all of the foregoing being collectively referred to as “Seller Indemnified Amounts”) arising out of or resulting from this Agreement or any other Transaction Document or the use of proceeds of the Investments or the ownership or security interest in respect of any Pool Receivable or any other Supporting Assets; excluding, however, (a) The Seller shall indemnify Indemnified Amounts to the Purchaser extent a final non-appealable judgment of a court of competent jurisdiction holds that such Seller Indemnified Amounts resulted solely from the gross negligence or willful misconduct by the Seller Indemnified Party seeking indemnification and its directors, officers, employees and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damagesb) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person Taxes (other than (x) Taxes enumerated in clause (xiv) below, (y) any Losses relating to TaxesTaxes that represent losses, for which indemnification provisions are set forth in Section 7.4(a)claims, damages, etc. arising from any non-Tax claim and (z) Seller Indemnified Amounts to the extent arising from a material breach of such Seller Indemnified Party’s obligations under any Transaction Document (as determined by a court of competent jurisdiction in a final, non-appealable judgment)). Without limiting or being limited by the foregoing, the Seller shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 3.01(a)), to each Seller Indemnified Party any and all amounts necessary to indemnify such Seller Indemnified Party from and against any and all Seller Indemnified Amounts relating to or resulting from any of the following (but excluding Seller Indemnified Amounts and Taxes described in clauses (a) and (b) above): (i) any breach of any representation Pool Receivable which the Seller or warranty the Servicer includes as an Eligible Receivable as part of the Seller contained in this Agreement (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of Net Receivables Pool Balance but which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent is not an earlier date is specified in Eligible Receivable at such representations and warranties)) or time; (ii) any breach of any covenant of representation, warranty or statement made or deemed made by the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions respective officers) under or omissions arising out in connection with this Agreement, any of the operation of Gibraltar in the ordinary course of business; and PROVIDEDother Transaction Documents, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused Pool Report or any other information or report delivered by fraud or on the part behalf of the Seller. The Purchaser acknowledges and agrees that, from and after Seller pursuant hereto which shall have been untrue or incorrect when made or deemed made; (iii) the Closing, its sole and exclusive remedy failure by the Seller to comply with any applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such applicable Law; (iv) the failure to vest in the Administrative Agent a first priority perfected ownership or security interest in all or any portion of the Supporting Assets, in each case free and all claims relating clear of any Adverse Claim; (v) the failure to the subject matter of this Agreement (have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other than claims similar instruments or documents under the MUF Agreement and the Additional Stop-Loss Agreement UCC of any applicable jurisdiction or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely other applicable Laws with respect to Taxes). In furtherance of any Pool Receivable and the foregoing, the Purchaser hereby waives, other Supporting Assets and releases and discharges the Seller and its affiliates Collections in respect ofthereof, from and after whether at the Closing, to the fullest extent permitted under applicable law, time of any and all rights, claims and causes of action (other than claims of, Investment or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon at any federal, state, local or foreign statute, law, ordinance, rule or regulation.subsequent time;
Appears in 1 contract
Samples: 756399172 Receivables Purchase Agreement (Rackspace Technology, Inc.)
Indemnification by the Seller. From and after the date hereof, the Seller agrees to indemnify and save and hold harmless the Purchaser, its officers, directors, shareholders, agents, successors, assigns and affiliates (acollectively, the "Purchaser Indemnified Parties") The Seller shall indemnify from, against, for and in respect of any and all damages, losses, obligations, liabilities, deficiencies, costs, expenses, including, without limitation, interest, penalties, reasonable attorneys' fees and reasonable amounts paid in investigation, defense and/or settlement suffered, sustained, incurred or required to be paid by any of the Purchaser and its directorsIndemnified Parties by reason of, officersor in connection with, employees and Affiliates against, and hold each or arising out of them harmless from, any loss, liabilitydemand, claim, damage suit, action, investigation or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) (collectively, for purposes of this Article 12, "Losses") suffered or incurred proceeding by any such Indemnified Person (other than any Losses relating person or entity not a party to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from this Agreement with respect to: (i) any the Excluded Liabilities; (ii) the conduct of the Business prior to the Closing Date; (iii) the breach of any representation or warranty of the Seller contained Seller, or any of them, in this Agreement Agreement; or (other than in Section 3.24iv) any untrue statement or alleged untrue statement contained in any certificate, schedule, exhibit, instrument or other document paper delivered pursuant hereto or thereto (all of which representations and warranties shall to be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) any breach of any covenant of delivered by the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by connection with the transactions herein contemplated ((i) through (iv), the "Purchaser to the SellerLosses"); PROVIDED, HOWEVER, that the Seller shall not have any no liability under clause (i) above this Section 14.1 unless the sum of and until the aggregate of all Purchaser's Losses relating thereto for exceeds $50,000 in which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the event Seller shall not have any liability under clause (i) above to the extent that the sum be liable for all Purchaser's Losses in excess of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Sellersuch amounts. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of Notwithstanding the foregoing, the Purchaser hereby waives, and releases and discharges Seller's liability with respect to this Section 14.1 shall be limited to the Purchase Price. In case the Seller and its affiliates in respect ofceases to exist, from and after the Closing, an appropriate guarantee acceptable to the fullest extent permitted under applicable law, Purchaser shall be issued by any company receiving substantially all the assets and all rights, claims and causes liabilities of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliatesor, directorsat Seller's option, officersa bank guarantee in lieu of such guarantee, employeesin either case, agents or assigns relating however, not to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar be unreasonably disapproved by the Seller or its Affiliates or Gibraltar's Business, Purchaser and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationagreed in writing between the Parties.
Appears in 1 contract
Samples: Asset Purchase Agreement (Princeton Security Technologies, Inc.)
Indemnification by the Seller. (a) The Seller shall indemnify the Purchaser Buyer and its directorsprincipals, officers, employees directors, employees, independent contractors, agents and Affiliates againstrepresentatives, in their capacities as such, and hold each the successors, heirs and personal representatives of any of them (collectively, "Buyer Indemnified Parties") against and hold them harmless from, from any loss, liabilityand all damage, claim, damage or loss, liability and expense (including including, without limitation, reasonable legal expenses of investigation and attorneys' fees and expenses, but excluding any consequential or special damages) (collectively, for purposes of this Article 12, "LossesLoss") incurred or suffered or incurred by any such Buyer Indemnified Person (other than any Losses Party arising out of or relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (ia) any breach of any representation representation, warranty, covenant or warranty other agreement of the Seller contained in this Agreement herein, (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (iib) any breach of any covenant alleged, claimed or established professional negligence or malpractice of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser with respect to the Seller; PROVIDEDperformance of professional services in the UPI Business on or prior to the Closing Date, HOWEVER(c) any debt, Tax, claim, option, liability, obligation or Lien of the Seller other than the Assumed Liabilities, or (d) that certain Computer Technology Agreement between International Consulting Solutions, Inc. and Olin Xxxporation, dated as of November 4, 1994. Notwithstanding the foregoing, the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any no liability under this Section 12.1(a) to 11.2 unless and until the extent the liability or obligation arises as a result aggregate amount of any action taken or omitted to be taken all claims by the Purchaser or any of its Affiliates other than those actions or omissions Buyer Indemnified Parties arising out of one or more breaches of representations, warranties, covenants or agreements by the operation of Gibraltar Seller exceeds $150,000 in the ordinary course aggregate, in which case the Seller shall be liable for the aggregate amount of business; and PROVIDEDall such claims up to a total maximum liability of value of the Shares at Closing (the "Share Value"), FURTHERwhich shall be based upon a value per share equal to the last closing sale price (the "Closing Date Sale Price") of the Common Stock on the Nasdaq Over the Counter Market on the Closing Date, HOWEVERor if there be no sale on such date, that the limitations set forth in most recent prior such sale. The Buyer may, at its option, offset against any payments due the Seller pursuant to this Agreement any amounts owed by the Seller to the Buyer pursuant to this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller11.2. The Purchaser acknowledges and agrees that, from and after Seller may pay any amount due the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be Buyer pursuant to the indemnification provisions set forth in this Section 12.1(a) and 11.2 in cash or by return of shares of Common Stock received by it from the Buyer pursuant to Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing3.1.1 hereof, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior at a valuation per share equal to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationDate Sale Price.
Appears in 1 contract
Indemnification by the Seller. (a) The Seller shall indemnify and hold harmless the Purchaser from and against all losses, claims, taxes, assessments, demands, damages, liabilities, obligations, costs and/or expenses (hereinafter referred to collectively as the "Purchaser's Damages"), including, without limitation, Purchaser's Counsel Expenses (as hereinafter defined), sustained or incurred by the Purchaser (or its designee) in any action, claim or proceeding (i) between the Purchaser and its directors, officers, employees and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person (other than any Losses relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (i) any breach of any representation or warranty of the Seller contained in this Agreement (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) between the Purchaser and any third party or (iii) otherwise (a) arising out of or relating to the breach of any covenant of the obligations, covenants or provisions of, or the inaccuracy of any of the representations or warranties made by the Seller herein or (b) arising out of or relating to any liabilities or obligations of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDEDare not Assumed Liabilities including, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable lawwithout limitation, any and all rightssales, claims use, transfer, corporate, payroll, and/or business and causes mercantile taxes, penalties, and interest, owed to the Commonwealth of Pennsylvania and/or Marpxx Xxxnship, and any and all fees incurred in connection with the Assignment of Lease. For purposes hereof, "Purchaser's Counsel Expenses" shall mean reasonable fees and disbursements of counsel howsoever sustained or incurred by the Purchaser (or its designee), including, without limitation, in any action (other than claims ofor proceeding between the Purchaser and any third party. In addition to the right of the Purchaser to indemnification hereunder, or causes the Purchaser shall have the right from time to time to set off the amount of action arising fromany of the Purchaser's Damages that the Purchaser is entitled to indemnification thereof against any Contingent Payments. In the event that the Purchaser exercises its right under this Section VIII(A) to set off the amount of any of the Purchaser's Damages against any Contingent Payment and the Seller disputes the validity of the Purchaser's Damages, fraudthe Purchaser agrees to place such disputed amount in an escrow account to be held by Haytxx & Curlxx xxxil the dispute is resolved pursuant to the terms of this Section VIII(A) it, may have against and Section XI(F) hereof. Any amounts set off by the Purchaser which are later awarded to the Seller in accordance with Section XI(F) hereof shall accrue interest at a rate of 8% per annum from the time of any such set off and shall include reasonable fees and disbursements of counsel incurred by the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Princeton Dental Management Corp)
Indemnification by the Seller. (a) The Seller shall If the Closing occurs, and subject to the limitations expressly set forth in this Article 8, the Sellers will, jointly and severally, indemnify and hold harmless the Purchaser and its Designated Affiliates and their directors, officers, employees employees, agents, successors and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) permitted assigns (collectively, for purposes the “Purchaser Indemnified Parties”) from and against any and all Losses of this Article 12, "Losses"the Purchaser Indemnified Parties (regardless of whether or not the Losses relate to any Third Party Claim) suffered arising or incurred by any such Indemnified Person (other than any Losses resulting from or relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (ia) any breach or inaccuracy of any representation or warranty of the Seller contained Sellers set forth in this Agreement (other than in Section 3.24) or in any certificate, instrument certificate delivered by or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as behalf of the Closing Date Sellers or any Selling Affiliate, (except to the extent an earlier date is specified in such representations and warranties)) or (iib) any breach of any covenant or agreement of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have Sellers (or any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser Selling Affiliate or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations their respective Affiliates) set forth in this Section 12.1(aAgreement, (c) shall not apply to any Excluded Liability or Retained Liability (other than Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and Excluded Taxes, for which the provisions of Section 9.1(a) will govern), (d) all claims relating to Liabilities for the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth Proceedings disclosed in this Section 12.1(aSections 3.14(f) and Section 7.4(a) (solely with respect to Taxes). In furtherance 3.18 of the foregoing, the Purchaser hereby waivesSeller Disclosure Schedule, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and (e) all rights, claims and causes of action (other than claims of, or causes of action Liabilities arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing Date related to the tax and employment status of Gibraltar two Employees disclosed in Section 3.14(d) of the Seller Disclosure Schedule. For the avoidance of doubt, the Sellers’ indemnification obligations with respect to Losses arising from Excluded Taxes will be governed by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationprovisions of Article 9.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (Natus Medical Inc)
Indemnification by the Seller. Without limiting any other rights that the Administrative Agent, the Purchaser Parties, the other Secured Parties and their respective assigns, officers, directors, agents and employees (each, a “Seller Indemnified Party”) may have hereunder or under applicable Law, the Seller hereby agrees to indemnify each Seller Indemnified Party from and against any and all claims, losses and liabilities (including Attorney Costs) (all of the foregoing being collectively referred to as “Seller Indemnified Amounts”) arising out of or resulting from this Agreement or any other Transaction Document or the use of proceeds of the Investments or the ownership or security interest in respect of any Pool Receivable or any other Supporting Assets; excluding, however, (a) The Seller shall indemnify Indemnified Amounts to the Purchaser extent a final non-appealable judgment of a court of competent jurisdiction holds that such Seller Indemnified Amounts resulted from the gross negligence, bad faith, or willful misconduct by the Seller Indemnified Party seeking indemnification and its directors, officers, employees and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damagesb) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person Taxes (other than (x) Taxes enumerated in clause (xiv) below and (y) any Losses relating to TaxesTaxes that represent losses, for which indemnification provisions are claims, damages, etc. arising from any non-Tax claim). Without limiting or being limited by the foregoing, the Seller shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 7.4(a3.01(a)) ), to the extent arising from (i) any breach of any representation or warranty of the each Seller contained in this Agreement (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) any breach of any covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to Indemnified Party any and all claims relating amounts necessary to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the indemnify such Seller and its affiliates in respect of, Indemnified Party from and after the Closing, to the fullest extent permitted under applicable law, against any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns Seller Indemnified Amounts relating to or resulting from any of the subject matter of this Agreement except under the MUF Agreement following (but excluding Seller Indemnified Amounts and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, Taxes described in clauses (a) and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation.(b) above):
Appears in 1 contract
Samples: Receivables Purchase Agreement (Kinetik Holdings Inc.)
Indemnification by the Seller. (a) The Seller shall will indemnify and hold the Purchaser Buyer, its Affiliates and its their respective directors, officers, managers, shareholders, partners, members, attorneys, accountants, agents, representatives and employees and Affiliates againsttheir heirs, successors and hold each of them permitted assigns and the Companies (the “Buyer Indemnified Parties”) harmless from, against and in respect of any lossdamages, liabilitylosses, claimcharges, damage or expense (including reasonable legal fees liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, Taxes, interest, penalties, costs and expenses, but excluding any consequential or special damages(including all remediation costs, fines, penalties and expenses of investigation and ongoing monitoring, attorneys’ fees and out of pocket disbursements) (collectively, for purposes the “Losses”) imposed on, sustained, incurred or suffered by, or asserted or threatened against, any of this Article 12the Buyer Indemnified Parties, "Losses") suffered whether in respect of third party claims, claims between the parties hereto, or incurred by any such Indemnified Person (other than any Losses otherwise, directly or indirectly relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent or arising from out of (i) any breach or inaccuracy of any Seller Representation or any representation or warranty made by the Seller in this Agreement or any other Transaction Agreement; (ii) any failure of the Seller to perform any covenant or agreement of the Seller contained in this Agreement (other than in Section 3.24) herein or in any certificate, instrument or other document delivered pursuant hereto or thereto Transaction Agreement; (all of iii) any Taxes for which representations the Seller is liable in accordance with Section 7.5 and warranties shall be deemed for which the Seller is not otherwise liable to have been remade on and as of indemnify the Closing Date (except to the extent an earlier date is specified in such representations and warranties)Buyer under Section 10.4(i) or (ii); (iv) any breach the Excluded Subsidiaries (or relating to the Excluded Subsidiaries); (v) the Pension Plans and (vi) the Lease Agreement, the Sublease Agreement or the Assignment and Assumption Agreement (to the extent such Loss arose or existed prior to the Closing Date). Subject to the following sentence, the Seller shall have no obligation to indemnify the Buyer under this Section 10.4(i) unless and until the aggregate amount of any covenant all Losses for which the Seller is liable under this Section 10.4 exceeds $100,000 at which time the Seller’s indemnity obligation shall extend to the entire amount of the Loss including the first $100,000 thereof. In no event shall the aggregate liability of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser with respect to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability all claims of indemnification under clause (i) above unless exceed (A) 40% of the Cash Payment with respect to any Loss relating to or arising out of any Seller Representation or any representation or warranty made by the Seller in this Agreement or any other Transaction Agreement (other than the Seller Representation contained in Section 5.11) or (B) the sum of the aggregate of all Losses Cash Payment and the Note Payment with respect to any Loss relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of businessSection 5.11; and PROVIDEDprovided, FURTHER, HOWEVERhowever, that the limitations set forth in the preceding two (2) sentences of this Section 12.1(a) 10.4 shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims Loss relating to the subject matter or arising out of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement Sections 5.1, 5.2, 5.3, 5.4, 5.5 or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation5.6.
Appears in 1 contract
Indemnification by the Seller. (a) The If the Phase I Closing occurs, and subject to the limitations expressly set forth in Section 8.4 and Section 8.5, the Seller shall will indemnify and hold harmless the Purchaser and its Affiliates and its and their directors, officers, employees employees, agents and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) representatives (collectively, for purposes of this Article 12, "Losses"the “Purchaser Indemnified Parties”) suffered or incurred by from and against any such Indemnified Person and all Losses (other than any Losses relating with respect to Taxes, for which indemnification the provisions are set forth in of Section 7.4(a)9.1(a) to will govern) incurred by the extent Purchaser Indemnified Parties arising or resulting from (ia) any breach of any representation or warranty set forth in Article 3 or in the certificates delivered pursuant to Sections 2.10(a)(xi) or Section 2.11(a)(iv) (determined, unless and until the Phase II Closing shall have occurred, solely with respect to the Phase I Business and the Purchased Assets and Assumed Liabilities acquired and assumed by the Purchaser upon the consummation of the Seller contained Phase I Closing, and in this Agreement (other than in Section 3.24) or in any certificatethe event that the Phase II Closing shall have occurred, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except with respect to the extent an earlier date is specified in such representations Business and warrantiesthe Purchased Assets and Assumed Liabilities)) or , (iib) any breach of any agreement or covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under determined, unless and until the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) Phase II Closing shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (have occurred, solely with respect to Taxesthe Phase I Business and the Purchased Assets and Assumed Liabilities acquired and assumed by the Purchaser upon the consummation of the Phase I Closing, and in the event that the Phase II Closing shall have occurred, with respect to the Business and the Purchased Assets and Assumed Liabilities), (c) any Excluded Liability, and (d) any Selling Expenses or Indebtedness (to the extent not deducted from the Purchase Price pursuant to Section 2.7). In furtherance For the sake of the foregoingclarity, the Purchaser hereby waives, and releases and discharges amount of indemnified Losses will be calculated without regard to any materiality or Material Adverse Effect qualifications contained in the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationprovisions hereof.
Appears in 1 contract
Indemnification by the Seller. (a) The Seller shall indemnify the Purchaser and its Subsidiaries and their respective Affiliates and each of their respective officers, directors, officersmanagers, employees and Affiliates againstemployees, and hold agents and other Representatives (each of them a “Purchaser Indemnified Party”) shall, subject to Section 5.02(b), from and after the Closing be indemnified and held harmless fromby the Seller for and against all losses, any lossdamages, liabilityclaims, claim, damage or expense costs and expenses (including reasonable legal attorneys’ fees and expenses, but excluding any consequential or special damages) (collectivelyincluding in connection with defense and/or enforcement), for purposes of this Article 12Taxes, "Losses") interest, awards, judgments, and penalties suffered or incurred by any such Indemnified Person them (other than any Losses relating to Taxeshereinafter a “Loss”), for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from out of, or resulting from, (ia) any the breach of any representation or warranty of made by the Seller contained in this Agreement Agreement, (other than in Section 3.24b) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) any breach of any covenant of or agreement by the Seller contained in this Agreement Agreement, (c) Excluded Taxes, (d) the Excluded Environmental Liabilities, (e) the Excluded Company Liabilities or (f) the Reorganization Transactions (other than any Taxes related thereto, which breach continues Taxes would be Excluded Taxes addressed in clause (c)); provided, that with respect to each of the clauses (a) - (f) and notwithstanding anything to the contrary in this Agreement, the Purchaser Indemnified Parties shall not be indemnified under this Section 7.02 for ten Business Days after notice thereof has been furnished any Assumed Liabilities, which shall be indemnified by the Purchaser Company Entities as set forth in Section 7.04 (subject to the Sellerexpress terms set forth therein and other limitations applicable with respect thereto); PROVIDEDprovided, HOWEVERfurther, that the Seller Purchaser Indemnified Parties shall not have any liability be indemnified under clause (ia) above unless the sum for any breach of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability representations or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar warranties made by the Seller or its Affiliates or Gibraltar's Businessin Section 3.13 (Asbestos Claims), subject to the express terms set forth therein and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationother limitations applicable with respect thereto.
Appears in 1 contract
Samples: Sale and Purchase Agreement (SPX Technologies, Inc.)
Indemnification by the Seller. (a) The From and after the Closing, the Seller shall indemnify the Purchaser Buyer, the Company, the Company’s Subsidiaries and its directors, officers, employees and their respective Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) (collectively, the “Tax Indemnified Buyer Parties”) against and hold them harmless from any and all Losses suffered or arising out of, in each case, without duplication, and with respect to any Losses attributable to the PRC IIT Matter (as defined below), other than the Aggregate Funded PRC IIT Amount (as defined below) (provided that this exception for the Aggregate Funded PRC IIT Amount (as defined below) shall not apply to Taxes imposed on a Tax Indemnified Buyer Party as a result of a breach of the representations and warranties contained in Section 5.26), (i) other than Taxes that are accrued as a liability on the Financial Statements and set forth on Section 8.1(a)(i) of the Seller Disclosure Letter, Taxes of the Company or its Subsidiaries for periods or portions thereof ending on or before the Lockbox Date (“Pre-Lockbox Taxes”), (ii) Taxes imposed on a Tax Indemnified Buyer Party as a result of (x) a breach of a representation or warranty set forth in Section 5.11, other than Taxes that are accrued as a liability on the Financial Statements and set forth on Section 8.1(a)(i) or Section 8.1(a)(ii) of the Seller Disclosure Letter (provided that the foregoing exception in this clause (x) for Taxes that are accrued as a liability on the Financial Statements and set forth on Section 8.1(a)(i) or Section 8.1(a)(ii) of the Seller Disclosure Letter shall not apply to Taxes imposed on a Tax Indemnified Buyer Party as a result of a breach of the representations and warranties contained in the second sentence of Section 5.11(b)), or (y) a breach of a covenant or agreement set forth in Section 2.5 or Article VIII; provided, that for purposes of this Article 12clause (ii) of this Section 8.1(a) only, "Losses"any breach of a representation, warranty, covenant or agreement shall be determined without reference to any materiality qualifier set forth therein or any exception disclosed thereto, (iii) suffered Taxes directly or incurred by any indirectly attributable to the failure of MK Shanghai to report to the applicable Tax Authority, or withhold Taxes attributable to, income allocated to Xxxxxxx Xxx and Xxxxx Xxx for the years ending March 31, 2012 through March 31, 2016 for their services to MK Shanghai during such Indemnified Person period, or Taxes otherwise directly or indirectly attributable to the matters described in Section 5.11(a) of the Seller Disclosure Letter (other than any Losses relating to Taxesthe “PRC IIT Matter”), for the avoidance of doubt in excess of the Aggregate Funded PRC IIT Amount (as defined below), (iv) Taxes for which indemnification provisions are set forth the Seller is responsible pursuant to Section 8.6, Section 8.7 or Section 8.8 or (v) costs and expenses (including reasonable attorneys’ fees and expenses) attributable to any item described in Section 7.4(a)) to the extent arising from clauses (i) through (v) above. Notwithstanding any breach other provision of any representation or warranty this Agreement, the representations and warranties of the Seller and the Company contained in Section 5.11 (Taxes) of this Agreement (other than shall survive the Closing and remain in Section 3.24) or in full force and effect with respect to any certificate, instrument or other document delivered pursuant hereto or thereto (all of which claim based on such representations and warranties shall be deemed until the earlier of (i) the date which is 60 days after the date upon which the liability to have been remade on and as which any such claim may relate is barred by all applicable statutes of the Closing Date limitations (except to the extent an earlier date is specified in such representations and warranties)including all periods of extension, whether automatic or permissive) or (ii) any breach of any covenant the third anniversary of the Closing Date. If the Buyer delivers written notice to the Seller contained of a claim for indemnification within the survival period applicable to such claim in accordance with the immediately preceding sentence, such claim shall survive until finally resolved or judicially determined. Notwithstanding any other provision of this Agreement which breach continues for ten Business Days after notice thereof has been furnished Agreement, all claims by the Purchaser Tax Indemnified Buyer Parties for indemnification with respect to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations matters set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) 8.1 shall be pursuant to satisfied solely out of any funds remaining in the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationEscrow Account.
Appears in 1 contract
Samples: Share Purchase Agreement (Michael Kors Holdings LTD)
Indemnification by the Seller. (a) The Seller shall indemnify From and after the Purchaser and its directorsClosing, officers, employees and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person (other than any Losses relating subject to Taxes, for which indemnification provisions are the limitations set forth in Section 7.4(a)9.3, the Seller shall be liable for and pay, and shall indemnify the Buyer Indemnitees against, any and all Damages arising out of (i) all Taxes that constitute Juicy Retained Liabilities; (ii) all Taxes that are imposed on, asserted against or attributable to the extent properties, income or operations of the Company, for all taxable years or other taxable periods that end on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date (“Pre-Closing Taxes”); and (iii) without duplication, (A) all Taxes resulting from, arising from out of, or incurred with respect to (i1) any breach of any representation or warranty of the Seller contained in this Agreement (other than in representations or warranties made pursuant to Section 3.24) 4.10 or in any certificateagreement, certificate or instrument or other document delivered pursuant hereto or thereto (all hereto, as of which representations and warranties shall be deemed to have been remade on the date hereby and as of the Closing Date (except without giving effect to the extent an earlier date is specified in such representations and warrantiesany “material”, “materiality”, “Material Adverse Effect” or similar qualification contained therein)) , or (ii2) any breach by the Seller of any covenant of the Seller contained covenants made in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by Section 9.8; (B) all Taxes imposed on the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises Company as a result of any action taken transaction contemplated by Section 6.3; and (C) all Taxes imposed on the Company as a result of the provisions of Regulations Sections 1.1502-6 or omitted 1.1502-78 or comparable provision of foreign, state or local Tax Law. Notwithstanding the foregoing, for the avoidance of doubt, the Seller shall not indemnify and hold harmless the Buyer Indemnitees pursuant to be taken this Section 9.8(b) against any Damages to the extent such Damages are attributable to any Buyer Tax Act or to any breach by the Purchaser or any Buyer of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth a covenant in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation9.8.
Appears in 1 contract
Samples: Purchase Agreement (Fifth & Pacific Companies, Inc.)
Indemnification by the Seller. (a) The From and after the consummation of the Closing, subject to the limitations set forth in Section 11.3, the Seller shall indemnify indemnify, defend and hold harmless the Purchaser Buyer and each of its Subsidiaries and Affiliates and its and their respective directors, officers, employees and Affiliates againstemployees, Representatives, agents, advisors, partners, members, shareholders, and hold each of them harmless fromtheir heirs, any losssuccessors and permitted assigns (including, liabilityfollowing the Closing, claimthe Acquired Companies and their respective Subsidiaries, damage or expense (including reasonable legal fees directors, officers and expenses, but excluding any consequential or special damagesemployees) (collectively, for purposes of this Article 12, "Losses"the “Buyer Indemnitees”) from and against any and all Damages suffered or incurred by any such Indemnified Person Buyer Indemnitee to the extent directly or indirectly arising out of, relating to or in connection with (i) the breach of any of the representations and warranties made by the Seller in Article IV (other than any Losses relating Section 4.16) (or in the certificate delivered pursuant to Taxes, for which indemnification provisions are set forth in Section 7.4(a)10.2(c) with respect to the extent arising from (isuch representations and warranties) any breach of any representation or warranty as of the Seller contained in this Agreement (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations Closing Date with the same force and warranties shall be deemed to have been remade effect as if made on and as of the Closing Date (except for representations and warranties expressly stated to relate to a specific date, in which case as of such date); provided, that for the extent an earlier date is specified purposes of this clause (i), qualifications as to “materiality” or “Material Adverse Effect” contained in any of the representations or warranties made by the Seller in this Agreement (or in the certificate delivered pursuant to Section 10.2(c) with respect to such representations and warranties) shall be disregarded for determining whether a breach of such representations and warranties has occurred and in calculating any Damages resulting therefrom (except with respect to the following representations (and the certificate delivered pursuant to Section 10.2(c), to the extent related to such representations)): Section 4.8(a) or (Financial Statements), Section 4.9(a) (Absence of Certain Changes) and any qualifications to the extent it qualifies an affirmative requirement to list specified items on a section of the Seller Disclosure Letter as set forth in Section 4.10 (Material Contracts), the first sentence of Section 4.13(a) (Benefit Plans, Employees), the first sentence of Section 4.15(b) (Real Property) and the first sentence of Section 4.20 (Acquired Company Insurance Policies), (ii) any breach of any covenant made by the Seller in this Agreement (or in the certificate delivered pursuant to Section 10.2(c) with respect to such covenants) (other than the covenants set forth in Section 7.12, Section 6.1(i) or Section 11.8), (iii) the Pre-Closing Restructuring and (iv) any Legal Action against any Buyer Indemnitees to the extent directly and primarily arising out of or relating to the ownership, use or operation of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that or the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller wouldGroup, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability whether arising before or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fifth & Pacific Companies, Inc.)
Indemnification by the Seller. (a) The Seller shall hereby undertakes to indemnify and defend the Purchaser and its directorshold the Purchaser harmless against all Losses paid, officersincurred or sustained by the Purchaser, employees and Affiliates againstincluding if paid in settlement of or in connection with any or actual claim, action, suit, Proceeding or investigation, that arises out of, in connection with, or relates to, in whole or in part, (i) any breach or inaccuracy of a representation of the Seller in this Agreement or in any Seller Document, and hold each of them harmless from(ii) any and all actions, any losssuits, liabilityproceedings, claimclaims, damage or expense (including demands, assessments, judgments, costs and expenses, including, reasonable legal fees and expenses, but excluding incurred in or incident to enforcing the indemnities under this Section 12.2; provided, however, that the indemnification obligation pursuant to this Section 12.2 shall terminate on the second anniversary of the Closing Date, and shall have no further force or effect thereafter, notwithstanding anything to the contrary contained in any consequential or special damages) (collectively, for purposes provision of this Article 12, "Losses") suffered Agreement or incurred by any such Indemnified Person applicable Law (other than any Losses relating to Taxes, for which indemnification provisions are set forth it being clarified that in the event that an indemnity demand under this Section 7.4(a)) is made prior to the extent arising from lapse of such period, then the indemnity obligation in respect of such specific demand shall continue to be in full force and effect until finally and irrevocably resolved or dismissed by a non-appealable decision of a competent court or arbitrator, notwithstanding the fact that such applicable period has since passed). Notwithstanding the foregoing, (a) the Seller shall be required to indemnify the Purchaser under this Section 12.2 only if the Losses under Section 12.2 (i) any breach of any representation or warranty of the Seller contained in this Agreement above, (x) exceed one hundred fifty thousand US dollars (US$150,000) and (y) other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as respect of the Closing Date (except representations made in the first paragraph of Section 4.14, arise from the same facts and circumstances which gave rise to the extent an earlier date is specified in such representations and warranties)) claim for inaccuracy or (ii) any breach of any covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to relevant representation and (b) the Seller; PROVIDED’s total maximum liability in the aggregate, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of for all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability claims made under this Section 12.1(a) 12.2, at any time or from time to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDEDtime, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on exceed the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationMaximum Indemnity Amount.
Appears in 1 contract
Samples: Share Purchase Agreement (Suspect Detection Systems, Inc.)
Indemnification by the Seller. (a) The Seller shall indemnify indemnify, defend and hold harmless the Purchaser Buyer and its directorsaffiliates, officersshareholders, officers and employees from and Affiliates againstagainst any and all claims, demands, actions, losses, damages, liabilities, costs and hold each of them harmless from, any loss, liability, claim, damage or expense expenses (including reasonable legal attorneys' fees and expenses, but excluding any consequential ) which arise out of or special damages) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person (other than any Losses relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from connection with: (i) any breach the inaccuracy of any representation or warranty of the representations and warranties of Seller contained in this Agreement (other than in Section 3.24) Agreement, or in any certificate, instrument certificate or other document agreement delivered pursuant hereto or thereto (ii) the breach by Seller of any of the covenants made by it in this Agreement; provided, however, that the foregoing shall not apply to any such claims, demands, actions, losses, damages, liabilities, costs and expenses that do not exceed $15,000 for any individual matter or $75,000 in the aggregate; and provided, further, that the Seller's liability in the aggregate under this Section 7.1 shall not exceed twenty-four million six hundred ninety-two thousand five hundred Dollars ($24,692,500) in the aggregate for all of which representations and warranties such matters. Neither Buyer nor the Corporation shall be deemed to have been remade on and as of the Closing Date (except sustained a loss to the extent an earlier date it is specified in such representations and warranties)) compensated by insurance carried by Buyer or (ii) any breach of any covenant of the Corporation. In computing the amount to be paid by the Seller contained in under this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDEDparagraph, HOWEVER, that the Seller there shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis deducted an amount equal to $499,000any Tax benefits realized by the Buyer, and then only to or the extent of any such excess; PROVIDED FURTHERCorporation (or their successors, HOWEVERassigns or affiliates), that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted the event giving rise to be taken by Seller's obligation to make such payment, after taking into account the Purchaser or any of its Affiliates other than those actions or omissions arising out income tax treatment of the operation Buyer's receipt of Gibraltar such payment. The indemnification contemplated in the ordinary course Deed of business; Tax Covenant and PROVIDED, FURTHER, HOWEVER, that any indemnification resulting from a breach of the representations and warranties contained in Section 2.15 hereof or the covenants contained in Section 4.15 hereof shall not be subject to the dollar limitations or minimums set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationabove.
Appears in 1 contract
Samples: Share Purchase Agreement (Ambi Inc)
Indemnification by the Seller. (a) The Seller shall indemnify From and after the Purchaser and its directorsconsummation of the Closing, officers, employees and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person (other than any Losses relating subject to Taxes, for which indemnification provisions are the limitations set forth in Section 7.4(a)9.3, the Seller shall indemnify, defend and hold harmless the Buyer and each of its Subsidiaries and Affiliates, and each of their respective directors, officers and employees (the “Buyer Indemnitees”) from and against any and all Damages suffered by any Buyer Indemnitee to the extent directly or indirectly arising from out of (i) any breach of any representation or warranty of the representations and warranties made by the Seller contained in this Agreement (other than in the Fundamental Representations and other than Section 3.244.10) or in any certificateagreement, certificate (including the certificate to be delivered by the Seller pursuant to Section 8.2(c)) or instrument or other document delivered pursuant hereto (in each case, without giving effect to any “material”, “materiality”, “Material Adverse Effect” or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date similar qualification contained in any such representation or warranty (except for such qualifications set forth in (x) Section 4.7 and Section 4.13(a) and (y) any qualification to the extent it qualifies an earlier date is affirmative requirement to list specified in such representations and warrantiesitems on the Seller Disclosure Letter)) or ), (ii) any breach of any covenant of the Fundamental Representations, (iii) any breach of any covenant made by the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis or an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Ancillary Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a6.1(h) and Section 7.4(a9.8), (iv) the Juicy Retained Liabilities, (solely with respect to Taxes). In furtherance v) the ownership, use or operation of (A) the foregoing, the Purchaser hereby waivesJuicy Retained Assets whether arising before or after Closing, and releases and discharges (B) the Seller and its affiliates in respect ofCompany or the Juicy IP Assets, from and after to the extent arising prior to the Closing, to the fullest extent permitted under applicable law, any and (vi) all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against Liabilities incurred in connection with the Seller, ’s and its Affiliates’ withdrawal from the National Retirement Fund, directorsand (vii) any transfer, officers, employees, agents disposition or assigns relating to contribution of any asset or liability of the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar Company by the Seller or its Affiliates any other member of the Seller Group in connection with the transactions contemplated by the Pre-Closing Transfer Documents, except to the extent expressly contemplated pursuant to the Pre-Closing Transfer Documents that the Company accept such assets or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationliability.
Appears in 1 contract
Samples: Purchase Agreement (Fifth & Pacific Companies, Inc.)
Indemnification by the Seller. (a) The Seller shall indemnify the Purchaser and its directors, officers, employees and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person (other than any Losses relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (i) any breach of any representation or warranty of the Seller contained in this Agreement (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) any breach of any covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and hereby agrees that, from and after the Closing, it shall indemnify, defend and hold harmless the Buyer and its sole Representatives and exclusive remedy their heirs, successors and permitted assigns, each in its capacity as such (the “Buyer Indemnified Parties,” collectively with the Seller Indemnified Parties, the “Indemnified Parties”) from, against and in respect to of any damages, losses, diminution in value, charges, obligations, Liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, Taxes, royalties, fines, interest, penalties and all reasonable costs and expenses (including removal costs, remediation costs, closure costs, allocable and reasonable internal costs, reasonable fees and expenses of attorneys, accountants, consultants and others and other out-of-pocket expenses incurred in the investigation, preparation, defense, settlement and ongoing monitoring of any of the same or in asserting, preserving or enforcing rights under this Agreement or any Ancillary Agreement) (collectively, “Losses”) imposed on, sustained, incurred or suffered by, any of the Buyer Indemnified Parties, whether in respect of third-party claims, claims between the parties hereto, or otherwise, directly or indirectly, relating to or arising out of or resulting from (i) subject to Section 7.2(b), any breach of or inaccuracy in any representation or warranty made by the subject matter Seller contained in this Agreement or any Ancillary Agreement for the period such representation or warranty survives, it being understood that, for purposes of this Agreement Section 7.2(a)(i), any qualifications relating to materiality (other than claims under but not the MUF Agreement and term “Material Adverse Effect”) contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached, (ii) any breach, violation or non-fulfillment of any covenant or agreement of the Additional Stop-Loss Seller contained in this Agreement or claims of fraudany Ancillary Agreement, (iii) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance any of the foregoingExcluded Liabilities, the Purchaser hereby waives, and releases and discharges (iv) any Taxes for which the Seller and its affiliates is responsible in respect ofaccordance with Section 5.4, from and after (v) the Closing, to failure of the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership Transferred Subsidiaries prior to the Closing to make social insurance (including housing fund) payments, overtime payments and salary and wage withholdings in compliance with applicable Law, (vi) any Liabilities relating to any Environmental Law arising out of Gibraltar the operation of the Business prior to the Closing (including the underpayment by the Seller Transferred Subsidiaries of waste water discharge levies required by applicable Environmental Law) and (vii) Intellectual Property infringement claims set forth on Schedule 3.13(l). Notwithstanding anything to the contrary herein, any claim by the Buyer under this Article VII relating to, arising out of or its Affiliates or Gibraltar's Businessresulting from the indemnity in Section 7.2(a)(vi), and arising any indemnity obligations under or based upon any federalArticle VII related thereto, state, local or foreign statute, law, ordinance, rule or regulationshall survive the Closing for a period of only three years.
Appears in 1 contract
Samples: Share Purchase Agreement (Cree Inc)
Indemnification by the Seller. (a) The Seller shall indemnify hereby indemnifies and holds the Purchaser Buyer, the Company and its directorstheir respective Affiliates (collectively, officers, employees the "Indemnified Parties") harmless from and Affiliates against, and hold each of them harmless fromagrees to defend promptly the Indemnified Parties from and reimburse the Indemnified Parties for, any lossand all losses, liabilitydamages, claimcosts, damage or expense (including expenses, liabilities, obligations and claims of any kind, including, without limitation, reasonable legal attorneys' fees and expenses, but excluding any consequential or special damages) other costs and expenses (collectively, for purposes of this Article 12, hereinafter referred to collectively as "Losses") suffered ), that any Indemnified Party may at any time suffer or incurred by any such Indemnified Person (other than any Losses relating to Taxesreasonably incur, for which indemnification provisions or become subject to, as a result of or that are set forth in Section 7.4(a)) to the extent arising from attributable to: (i) any breach or inaccuracy of any representation of the representations and warranties made by the Seller in or warranty pursuant to this Agreement; (ii) any failure of the Seller contained in to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and instruments delivered by the Company or the Seller pursuant to this Agreement; and (other than iii) those matters listed in Section 3.247.1(a) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (Disclosure Schedule, except to the extent an earlier date that such liability is specified specifically disclosed in such the Disclosure Schedule (excluding matters disclosed in Section 7.1(a) of the Disclosure Schedule). Seller shall not be required to indemnify, hold harmless, defend or reimburse the Indemnified Parties pursuant to Section 7.1(a)(i) hereof in respect of the representations and warrantieswarranties made by Seller unless such right to indemnification is asserted by an Indemnified Party (whether or not such Losses have actually been incurred) by written notice to Seller setting forth the basis for such claim in reasonably detail within the following time periods: with respect to the representations and warranties set forth in Sections 2.1(a), 2.1(b)(i), 2.1(c), 2.2, 2.4, 2.5, and 2.18 hereof (collectively, the "Fundamental Representations and Warranties"), without time limitation; with respect to the representations and warranties set forth in Section 2.15 hereof, within 60 days after the expiration of the applicable statute of limitations (including all extensions thereof) for the underlying claim which forms the basis of the Indemnified Party's assertion of such right to indemnification; and with respect to all other representations and warranties set forth in Article II hereof, within two (2) years after the Closing Date. The maximum aggregate amount of indemnifiable Losses which may be recovered from the Seller by all Indemnified Parties pursuant to this Section 7.1(a) in respect of the representations and warranties made by Seller shall be an aggregate amount not exceeding $10,000,000 (the "Cap"); provided, however, that the Cap shall not apply with respect to any Losses resulting from or (ii) any breach relating to breaches of any covenant of the Fundamental Representations and Warranties and such Losses shall not count towards the satisfaction of the Cap; provided, further, that the aggregate amount of all indemnifiable Losses that may be recovered from the Seller contained by all Indemnified Parties in satisfaction of claims for indemnification pursuant to this Section 7.1(a) (including with respect to any Losses resulting from breaches of any Fundamental Representations and Warranties and covenants) shall not exceed the Purchase Price. Notwithstanding the foregoing, the Seller shall not be obligated to indemnify the Buyer or any other Indemnified Party with respect to any Loss for which an accrual or reserve relating specifically to the fact or circumstance that caused such Loss was included in the Final Closing Statement (including any such fact or circumstance that the Seller and the Buyer considered for provision and agreed, in writing, should not be accrued for or reserved against on the Final Closing Statement), whether or not such accrual proved adequate. The Seller shall not be required to indemnify, hold harmless, defend or reimburse any Indemnified Party pursuant to this Section 7.1(a) in respect of the representations and warranties made by the Seller unless and until the amount of all identifiable Losses which may be recovered from the Seller equals or exceeds, in the aggregate, $250,000 (the "Basket"), at which point the Seller will be obligated to indemnify the Indemnified Parties only for Losses in excess of the Basket and, thereafter, the Seller shall indemnify the Indemnified Parties for all additional Losses with respect thereto; provided, however, that the Basket shall not apply with respect to any Losses resulting from or relating to breaches of any of the Fundamental Representations and Warranties. No party shall have any liability under any provision of this Agreement or otherwise for any punitive, incidental, consequential, special or indirect damages. The amounts for which breach continues for ten Business Days after notice thereof has been furnished the Seller shall be liable under Section 7.1(a) of this Agreement shall be net of any insurance proceeds received by any Indemnified Party in connection with the facts giving rise to the right of indemnification. In the event a claim against any Indemnified Party arises that is covered by the Purchaser indemnity provisions of Section 7.1(a) of this Agreement, notice shall be given promptly by such Indemnified Party to the Seller; PROVIDEDprovided, HOWEVERhowever, that the failure to give notice as required by this Section 7.1(c) shall not result in a waiver of any right to indemnification hereunder except to the extent that the Seller's ability to defend against the event with respect to which indemnification is sought is materially adversely affected by the failure of the Indemnified Party to give such notice promptly. Provided that the Seller admits in writing to the party seeking indemnification that such claim is covered by the indemnity provisions of Section 7.1(a) hereof, Seller shall have the right to contest and defend by all appropriate legal proceedings such claim and to control all settlements (unless the party seeking indemnification agrees to assume the cost of settlement and to forgo such indemnity) and to select lead counsel to defend any and all such claims at the sole cost and expense of the Seller; provided, however, that the Seller shall not have be entitled to assume the defense of any liability under clause such claim if such claim (i) above involves any Governmental Authority, (ii) seeks injunctive relief, (iii) involves a class action, (iv) involves allegations of criminal activities or (v) involves allegations of violations of The Racketeer Influenced and Corrupt Organizations Act of 1970, as amended ("RICO"), any domestic or foreign federal or state securities laws or regulations or any domestic or foreign federal or state antitrust laws; and provided, further, that Seller may not effect any settlement that could reasonably be expected to result in any cost, expense or liability to, or have any adverse effect upon, any Indemnified Party unless such party consents in writing to such settlement. The party seeking indemnification may select counsel to participate in any defense, in which event such counsel shall be at the sum sole cost and expense of such party. In connection with any such claim, action or proceeding, the aggregate of all Losses relating thereto for which the Seller wouldparties shall cooperate with each other, but for this provisoincluding by making commercially reasonable efforts to mitigate or resolve any such claim, be liable, exceeds on a cumulative basis an amount equal to $499,000action or proceeding, and then only provide each other with access to relevant books and records in their possession. Without limiting the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance generality of the foregoing, the Purchaser hereby waivesBuyer shall, and releases shall cause its Subsidiaries to, use reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. An Indemnified Party shall make a claim against the Escrow Amount for the amount of any Losses with respect to which Seller is required to indemnify such Indemnified Party pursuant to this Section 7.1 by notifying Seller of the amount of and discharges grounds for any such claim. Unless, within 20 Business Days following receipt of such notice, Seller objects to such claim by a writing setting forth the grounds for such objection, such claims shall become effective at the close of business on the 20th Business Day (it being understood that Seller shall have no right to object to any such claim if Seller controlled the defense or settlement of such claim pursuant to Section 7.1(c) hereof). If Seller timely objects to any claim, the parties will use their commercially reasonable efforts to resolve such objection. If a final resolution is not obtained within 20 Business Days after the Indemnified Party's receipt of Seller's objections, the Indemnified Party and the Seller and its affiliates in respect of, from and after the Closing, will apply to the fullest extent permitted American Arbitration Association for appointment of an arbitrator and shall accept such appointment. The arbitrator shall consider the dispute at issue in the City of New York, at a mutually agreed upon time, and shall rule on Seller's objections within 60 days after submission of the matter to him. Buyer, for itself and the Indemnified Parties, and Seller, agree that the arbitrator's decision shall be conclusive. The parties agree promptly to submit a joint notice to the Escrow Agent to reflect the arbitrator's decision. The Indemnified Parties and Seller shall share equally the fees and expenses of any arbitrator appointed under applicable lawthis Section 7.1(d). On the second anniversary of the Closing Date, Buyer and Seller shall cause the Escrow Agent to release from escrow and remit to Seller the remaining Escrow Amount, less the amount of any Losses for which a claim of indemnification has been made hereunder but not yet resolved. Thereafter, any remaining portion of the Escrow Amount not released because of pending claims for indemnification shall be promptly released upon resolution of such claims. Any interest accruing on the Escrow Amount shall constitute part of such Escrow Amount and all rights, shall be subject to claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller Indemnified Parties to satisfy Seller's indemnification obligations hereunder. Nothing contained herein shall be interpreted to reduce or its Affiliates or Gibraltareliminate Seller's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationobligation to indemnify the Indemnified Parties pursuant to Section 7.1(a) hereof for amounts in excess of the Escrow Amount.
Appears in 1 contract
Indemnification by the Seller. (a) The Subject to the provisions of this Article VIII, after the Closing Date, Seller shall indemnify the Purchaser and its Affiliates and each of their respective officers, directors, officersemployees, employees agents and Affiliates each of the successors and assigns of the foregoing against, and agree to hold each of them harmless from, any and all damage, disbursement, loss, liability, cost, claim, damage interest, award, judgment, penalty, interest or expense (including reasonable legal expenses of investigation and reasonable attorneys’ fees and expensesexpenses in connection with any action, but excluding any consequential suit or special damagesproceeding) (collectively, for purposes “Losses”) (including such fees and expenses related to the enforcement of this Article 12, "Losses"Agreement) incurred or suffered or incurred by any such Indemnified Person (other than any Losses relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (i) any breach of any representation or warranty of the Seller contained in this Agreement (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) any breach of any covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions because of (1) any breach of a representation or omissions arising out warranty of Seller contained in Section 3.1 determined without regard to any Knowledge, Material Adverse Effect or materiality qualifier therein (except in the case of the operation of Gibraltar in the ordinary course of business; representations and PROVIDED, FURTHER, HOWEVER, that the limitations warranties set forth in Sections 3.1(e)), (2) any breach of an agreement or covenant made by Seller in this Agreement or in any certificate delivered pursuant to this Agreement, (3) any Excluded Liabilities, (4) any Excluded Taxes, (5) the failure by Seller to comply with any applicable bulk sales laws (notwithstanding the waiver contained in Section 12.1(a4.13), or (6) shall not apply except as reserved or reflected in the Annual Financial Information or Interim Financial Information and subject to any Losses caused by fraud on the part Section 3.1(e), Seller’s operation of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership Business prior to the Closing Date. Notwithstanding the foregoing, Purchaser and its Affiliates shall not be entitled to indemnification pursuant to clause (1) of Gibraltar this Section 8.2 (other than for breaches of Sections 3.1(a), (b), (f), (k)(i), (k)(ii), (m) and (n) which shall not be subject to the following limitations): (a) for any Losses until the aggregate amount of all Losses incurred or suffered by the Seller Purchaser or any of its Affiliates exceeds Five Hundred Thousand Dollars ($500,000), in which case the Purchaser and its Affiliates shall be entitled to indemnification for the full amount of Losses in excess of such threshold; and (b) for Losses, in the aggregate, incurred or Gibraltar's Business, and arising under suffered by the Purchaser or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulationof its Affiliates in excess of one-half of the Purchase Price.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pier 1 Imports Inc/De)
Indemnification by the Seller. (a) The Seller shall will indemnify and hold the Purchaser Buyer, its Affiliates and its their respective directors, officers, managers, shareholders, partners, members, attorneys, accountants, agents, representatives and employees and Affiliates againsttheir heirs, successors and hold each of them permitted assigns and the Companies (the “Buyer Indemnified Parties”) harmless from, against and in respect of any lossdamages, liabilitylosses, claimcharges, damage or expense (including reasonable legal fees liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, Taxes, interest, penalties, costs and expenses, but excluding any consequential or special damages(including all remediation costs, fines, penalties and expenses of investigation and ongoing monitoring, attorneys’ fees and out of pocket disbursements) (collectively, for purposes the “Losses”) imposed on, sustained, incurred or suffered by, or asserted or threatened against, any of this Article 12the Buyer Indemnified Parties, "Losses") suffered whether in respect of third party claims, claims between the parties hereto, or incurred by any such Indemnified Person (other than any Losses otherwise, directly or indirectly relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent or arising from out of (i) any breach or inaccuracy of any Seller Representation or any representation or warranty made by the Seller in this Agreement or any other Transaction Agreement; (ii) any failure of the Seller to perform any covenant or agreement of the Seller contained in this Agreement (other than in Section 3.24) herein or in any certificate, instrument or other document delivered pursuant hereto or thereto Transaction Agreement; (all of iii) any Taxes for which representations the Seller is liable in accordance with Section 7.5 and warranties shall be deemed for which the Seller is not otherwise liable to have been remade on and as of indemnify the Closing Date (except to the extent an earlier date is specified in such representations and warranties)Buyer under Section 10.4(i) or (ii); (iv) any breach the Excluded Subsidiaries (or relating to the Excluded Subsidiaries); (v) the Pension Plans; (vi) the Lease Agreement or the Assignment and Assumption Agreement (to the extent such Loss arose or existed prior to the Closing Date); and (vii) the Platinum Dispute. Subject to the following sentence, the Seller shall have no obligation to indemnify the Buyer under this Section 10.4(i) unless and until the aggregate amount of any covenant all Losses for which the Seller is liable under this Section 10.4 exceeds $100,000 at which time the Seller’s indemnity obligation shall extend to the entire amount of the Loss including the first $100,000 thereof. In no event shall the aggregate liability of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser with respect to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability all claims of indemnification under clause (i) above unless the sum of the aggregate of all Losses exceed (A) $2,500,000 with respect to any Loss relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of any Seller Representation or any representation or warranty made by the operation Seller in this Agreement or any other Transaction Agreement (other than the Seller Representation contained in Section 5.11) or (B) $2,500,000 with respect to any Loss relating to or arising out of Gibraltar in the ordinary course of businessSection 5.11; and PROVIDEDprovided, FURTHER, HOWEVERhowever, that the limitations set forth in the preceding two (2) sentences of this Section 12.1(a) 10.4 shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims Loss relating to the subject matter or arising out of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement Sections 5.1, 5.2, 5.3, 5.4, 5.5, 5.6 or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation5.8.3.
Appears in 1 contract
Samples: And Restated Stock Purchase Agreement (Pma Capital Corp)
Indemnification by the Seller. (a) The Seller shall agrees to indemnify and hold each of the Purchaser and its Affiliates and any and all of their respective partners, directors, trustees, managers, members, officers, employees employees, agents and Affiliates controlling persons (each, a “Purchaser Indemnified Party”) harmless from and against, and hold will pay to each of them harmless fromPurchaser Indemnified Party the amount of, any lossand all Losses (including Confidential Treatment Requested by Royalty Pharma plc Pursuant to 17 C.F.R. Section 200.83 attorneys’ fees) awarded against or incurred or suffered by such Purchaser Indemnified Party, liability, whether or not involving a third party claim, damage demand, action or expense (including reasonable legal fees and expensesproceeding, but excluding any consequential or special damages) (collectively, for purposes arising out of this Article 12, "Losses") suffered or incurred by any such Indemnified Person (other than any Losses relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (i) any breach of any representation representation, warranty or warranty certification made by the Seller in any of the Transaction Documents to which the Seller contained in this Agreement (other than in Section 3.24) is party or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of certificates given by the Closing Date (except Seller to the extent an earlier date is specified Purchaser in such representations writing pursuant to this Purchase and warranties)) Sale Agreement or any other Transaction Document, (ii) any breach of or default under any covenant or agreement by the Seller under any Transaction Document to which the Seller is party or the Counterparty Agreement, (iii) any Excluded Liabilities and Obligations (unless such Excluded Liabilities and Obligations are due to the Purchaser not complying with Section 5.10), (iv) claims arising on or after the Closing Date and asserted against a Purchaser Indemnified Party relating to the transactions contemplated in any Transaction Document or the Counterparty Agreement and (v) any fees, expenses, costs, liabilities or other amounts incurred or owed by the Seller to any brokers, financial advisors or comparable other Persons retained or employed by it in connection with the transactions contemplated by this Purchase and Sale Agreement; provided, however, that the foregoing shall exclude any indemnification to any Purchaser Indemnified Party (A) that has the effect of imposing on the Seller any recourse liability for Royalties because of the insolvency or other creditworthiness problems of Counterparty or the insufficiency of the Royalties, whether as a result of the amount of cash flow arising from sales or licensing of the Licensed Products or otherwise, unless resulting from a breach of representation and warranty by Seller or from the failure of the Seller contained in to perform its obligations under this Purchase and Sale Agreement which breach continues for ten Business Days after notice thereof has been furnished or Counterparty Agreement, (B) to the extent resulting from the bad faith, gross negligence or willful misconduct of such Purchaser Indemnified Party or (C) to the extent resulting from acts or omissions of the Seller based upon the written instructions from any Purchaser Indemnified Party. Any amounts due to any Purchaser Indemnified Party hereunder shall be payable by the Seller to such Purchaser to Indemnified Party upon demand. Notwithstanding the foregoing, absent the Seller; PROVIDED’s actual fraud, HOWEVER, that in no event shall the Seller shall not have any liability Seller’s indemnification obligations under clause (i) above unless of this Section 7.1 exceed, individually or in the sum of the aggregate of all Losses relating thereto for which the Seller wouldaggregate, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation[***].
Appears in 1 contract
Indemnification by the Seller. (a) The Seller shall agrees to indemnify and hold harmless the Purchaser and its Affiliates and any or all of their respective partners, directors, officers, employees managers, employees, agents, successors and Affiliates direct and indirect owners (each, a “Purchaser Indemnified Party”) from and against, and hold will pay to each of them harmless fromPurchaser Indemnified Party the amount of, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) (collectively, for purposes of this Article 12, "Losses") suffered all Losses awarded against or incurred or suffered by any such Purchaser Indemnified Person Party, whether or not involving a Third Party Claim, arising out of (other than any Losses relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from (ia) any breach of any representation or warranty made by the Seller in any of the Seller contained in this Agreement Transaction Documents, (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (iib) any breach of or default under any covenant or agreement of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by any of the Purchaser to the Seller; PROVIDED, HOWEVER, that Transaction Documents and (c) all liabilities and obligations of the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar are retained by the Seller or any of its Affiliates as described in Section 2.3; provided, however, that the foregoing shall exclude any indemnification to any Purchaser 24 Indemnified Party (i) that results from the bad faith, gross negligence or Gibraltar's Businesswillful misconduct of any Purchaser Indemnified Party, (ii) that results from the failure of Provention to perform any of its obligations under the Asset Purchase Agreement, unless resulting from the breach or default by the Seller of or under the Asset Purchase Agreement and arising under except to the extent the Seller fails to comply with Section 5.7 in enforcing such obligations of Provention, or based upon (iii) to the extent resulting from acts or omissions of the Seller taken (or omitted to be taken) at the direction of any federalPurchaser Indemnified Party as set forth in any written instructions from any Purchaser Indemnified Party to the Seller. Any amounts due to any Purchaser Indemnified Party (as determined in accordance with and subject to the limitations, state, local or foreign statute, law, ordinance, rule or regulationterms and conditions of this Article VII) hereunder shall be payable by the Seller to such Purchaser Indemnified Party [***] following written demand delivered to the Seller by such Purchaser Indemnified Party.
Appears in 1 contract
Indemnification by the Seller. Without limiting any other rights that the Administrative Agent, the Purchaser Parties, the other Secured Parties and their respective assigns, officers, directors, agents and employees (each, a “Seller Indemnified Party”) may have hereunder or under applicable Law, the Seller hereby agrees to indemnify each Seller Indemnified Party from and against any and all claims, losses and liabilities (including Attorney Costs) (all of the foregoing being collectively referred to as “Seller Indemnified Amounts”) arising out of or resulting from this Agreement or any other Transaction Document or the use of proceeds of the Investments or the ownership or security interest in respect of any Pool Receivable or any other Supporting Assets; excluding, however, (a) The Seller shall indemnify Indemnified Amounts to the Purchaser extent a final non-appealable judgment of a court of competent jurisdiction holds that such Seller Indemnified Amounts resulted from (i) the gross negligence, bad faith or willful misconduct by the Seller Indemnified Party seeking indemnification or (ii) a material breach by such Seller Indemnified Party of its obligations hereunder or under the other Transaction Documents and its directors, officers, employees and Affiliates against, and hold each of them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damagesb) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person Taxes (other than (x) Taxes enumerated in clause (xiv) below and (y) any Losses relating to TaxesTaxes that represent losses, for which indemnification provisions are claims, damages, etc. arising from any non-Tax claim). Without limiting or being limited by the foregoing, the Seller shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 7.4(a3.01(a)) ), to the extent arising from (i) any breach of any representation or warranty of the each Seller contained in this Agreement (other than in Section 3.24) or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and as of the Closing Date (except to the extent an earlier date is specified in such representations and warranties)) or (ii) any breach of any covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDED, HOWEVER, that the Seller shall not have any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to Indemnified Party any and all claims relating amounts necessary to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the indemnify such Seller and its affiliates in respect of, Indemnified Party from and after the Closing, to the fullest extent permitted under applicable law, against any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns Seller Indemnified Amounts relating to or resulting from any of the subject matter of this Agreement except under the MUF Agreement following (but excluding Seller Indemnified Amounts and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, Taxes described in clauses (a) and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation.(b) above):
Appears in 1 contract
Samples: Receivables Purchase Agreement (Mativ Holdings, Inc.)
Indemnification by the Seller. The Purchasers, their Affiliates, the Companies, the Company Subsidiaries and their respective officers, members, partners, directors, employees, agents and representatives and their respective successors and assigns (aeach, a “Purchaser Indemnified Party”) The shall be indemnified and held harmless by the Seller shall indemnify the Purchaser (and its directors, officers, employees respective successors and Affiliates against, assigns) for and hold each against all Losses arising out of them harmless or resulting from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses, but excluding any consequential or special damages) (collectively, for purposes of this Article 12, "Losses") suffered or incurred by any such Indemnified Person (other than any Losses relating to Taxes, for which indemnification provisions are set forth in Section 7.4(a)) to the extent arising from : (i) any breach as of the date of this Agreement or the Closing Date of any representation representations and warranties made by the Seller in this Agreement or warranty in any certificate delivered by the Seller at the Closing in accordance herewith (other than any breach of any representations or warranties set forth in Section 3.19, which shall be governed by Article VII), in each case, without regard to materiality qualifiers (including Material Adverse Effect); (ii) any failure by the Seller to perform any of its covenants or agreements contained in this Agreement; (iii) any Indebtedness of the Companies and the Company Subsidiaries outstanding immediately after the Closing; (iv) the amount of all Seller Transaction Expenses which have not been paid prior to Closing and which the Companies and the Company Subsidiaries are required to pay following the Closing; (v) the Retained Litigation; (vi) amounts for which the Seller is liable pursuant to Section 5.13; (vii) Losses arising out of the Pre-Closing Transfers and liabilities to be transferred from the Companies and the Company Subsidiaries in accordance with Section 5.08; (viii) Losses arising from the failure of the Seller contained to obtain any consents contemplated by Section 5.15; (ix) Losses of the Companies and the Company Subsidiaries in this Agreement respect of amounts of the 2008 Bonuses that are unpaid as of the Closing; and (other than in Section 3.24x) any overdraft liabilities or in any certificate, instrument or other document delivered pursuant hereto or thereto (all of which representations and warranties shall be deemed to have been remade on and negative cash balances as of the Closing Date (except to the extent an earlier date is specified Date; provided, however, that, in such representations and warranties)) or (ii) any breach of any covenant of the Seller contained in this Agreement which breach continues for ten Business Days after notice thereof has been furnished by the Purchaser to the Seller; PROVIDEDeach case, HOWEVER, that the Seller shall not have be required to indemnify any liability under clause (i) above unless the sum of the aggregate of all Losses relating thereto for which the Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to $499,000, and then only Purchaser Indemnified Party to the extent of any such excess; PROVIDED FURTHER, HOWEVER, that Loss has been taken into account in determining the Seller shall not have any liability under clause (i) above to the extent that the sum of the aggregate of all Losses relating thereto exceeds $20,000,000; and PROVIDED FURTHER, HOWEVER, that the Seller shall not have any liability under this Section 12.1(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates other than those actions or omissions arising out of the operation of Gibraltar in the ordinary course of business; and PROVIDED, FURTHER, HOWEVER, that the limitations set forth in this Section 12.1(a) shall not apply to any Losses caused by fraud on the part of the Seller. The Purchaser acknowledges and agrees that, from and after the Closing, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (other than claims under the MUF Agreement and the Additional Stop-Loss Agreement or claims of fraud) shall be Purchase Price Adjustment pursuant to the indemnification provisions set forth in this Section 12.1(a) and Section 7.4(a) (solely with respect to Taxes). In furtherance of the foregoing, the Purchaser hereby waives, and releases and discharges the Seller and its affiliates in respect of, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it, may have against the Seller, its Affiliates, directors, officers, employees, agents or assigns relating to the subject matter of this Agreement except under the MUF Agreement and the Additional Stop-Loss Agreement or the ownership prior to the Closing of Gibraltar by the Seller or its Affiliates or Gibraltar's Business, and arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation2.07.
Appears in 1 contract
Samples: Stock Purchase Agreement (Readers Digest Association Inc)
