Purchaser Claims. (a) Seller shall indemnify and hold harmless Purchaser, its successors and assigns, against, and in respect of: (i) Any and all damages, losses, liabilities, costs, and expenses incurred or suffered by Purchaser that result from, relate to, or arise out of: (A) any and all liabilities and obligations of Seller of any nature whatsoever, except for the Assumed Liabilities; (B) any failure by Seller to carry out any covenant or agreement contained in this Agreement; (C) any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser by Seller pursuant hereto; (D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such Person; or (E) any claim arising out of the operation of the Restaurants prior to the Closing. (ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above. (b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from and against all such liabilities for the affected Restaurant relating to the first dollar); provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00. (c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose. (d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"): (i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing; (ii) the representations and warranties contained in Sections 3.1 through 3.4, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and (iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated. (e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing. (f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article. (g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Purchaser Claims. (a) Seller shall indemnify will indemnify, defend and hold harmless Purchaser, its Affiliates and each of their officers, directors, employees, attorneys, agents and successors and assignsassigns (collectively, againstthe "Purchaser Group"), from and in respect of:
(i) Any against any and all demands, suits, penalties, obligations, damages, claims, losses, liabilities, costspayments, costs and expenses ("Losses"), including reasonable legal, accounting and other expenses in connection therewith and costs and expenses incurred in connection with investigations and settlement proceedings, which arise out of, are in connection with or suffered by Purchaser that result from, relate to, the following (collectively, "Purchaser Claims"), in each case, even if such Losses are caused by the sole, joint or arise out of:
(A) concurrent negligence, strict liability or other fault of any and all liabilities and obligations person included in the Purchaser Group or any other Person: any breach or violation of any covenant, obligation or agreement of Seller set forth in this Agreement or the Ancillary Agreements; any breach or inaccuracy of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure representations or warranties made by Seller to carry out any covenant or agreement contained in this Agreement;
(C) Agreement or the Ancillary Agreements, whether such representation or warranty is made as of the Effective Date or the Closing Date or in any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished certificate to Purchaser be delivered by Seller pursuant hereto; provided that for purposes of determining the amount of Losses sustained or incurred thereby, for purposes of this Section 7.1(a) only, such representations and warranties shall be interpreted without giving effect to the words "material", "materially", "Material Adverse Effect", or words of similar effect; provided, further that no indemnity is provided with respect to the second sentence of Section 4.18; Seller's ownership, operation or use of any of the Excluded Assets; the Excluded Liabilities; any Third Party Claim relating to, in connection with or arising out of the ownership, operation or use of any of the Purchased Assets, to the extent relating to any period of time on or prior to the Closing Date; or any other matter relating to the Business or the Purchased Assets, to the extent relating to any period of time on or prior to the Closing Date, or relating to any Excluded Asset or Excluded Liability. Seller Limitations. Subject to paragraph (Dv) below: The Purchaser Group shall not be entitled to any claim by punitive, incidental, indirect, special or consequential damages included in any Person Purchaser Claim or otherwise resulting from, in connection with or arising out of this Agreement or the Ancillary Agreements, including such damages for lost revenues, income or profits, diminution in value of the Project or for any brokerage other damage or finder's fee loss resulting from the disruption to or commission in respect loss of operation of the transactions contemplated hereby Project; provided that this limitation shall not apply to any Purchaser Claim for indemnification from any punitive, incidental, indirect, special or consequential damages awarded against Purchaser as a result of Seller's dealingsa Third Party Claim. The Purchaser Group shall not be entitled to any damages in connection with the termination of this Agreement by Purchaser pursuant to Section 10.1(c), agreement, or arrangement with such Person; or
(E) any claim arising out unless at the time of the operation of the Restaurants prior termination (y) Seller could not or would not deliver to Purchaser title to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of Purchased Assets meeting the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter requirements set forth in subsection Sections 4.10, 4.11, 4.12 and 4.14 or (iz) above.
the condition or the functionality of the Purchased Assets does not meet the requirements set forth in Sections 4.13 and 4.26 or is materially and adversely different from the condition or functionality of the Purchased Assets which exists as of the Effective Date. The aggregate damages to which the Purchaser Group shall be entitled under Section 7.1(a) shall be limited to (bA) $23,182,676.00 less any Liquidated Damages for Costs and Expenses paid by Seller, with respect to Purchaser Claims asserted before the Closing, (B) $9,273,070.40, with respect to Purchaser Claims asserted after the Closing through the day before the date that is six months after the Closing Date, (C) $4,636,535.20, with respect to Purchaser Claims asserted on and after the date that is six months after the Closing Date through the date that is one year after the Closing Date and (D) $0 with respect to Purchaser Claims asserted thereafter. The Purchaser Group shall not be entitled to indemnification under Section 7.1(a) for Purchaser Claims for Purchaser General Costs and Expenses for which Liquidated Damages for Costs and Expenses are paid by Seller pursuant to Section 10.3. Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C(A) the limitations in paragraph (and Section 8.1(a)(iii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from and against all such liabilities for the affected Restaurant relating to the first dollar); provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject apply to any claim for Liquidated Damages for Costs and Expenses; (B) the foregoing threshold and any liabilities arising with respect to such matters limitations in paragraph (ii) above shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit apply to Purchaser from the matter giving rise to the claim Claims following a termination for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation a breach of the transactions contemplated herein Section 6.15 or to any claim for Liquidated Damages for Costs and shall continue in full force Expenses and effect for the periods specified below ("Survival Period"):
(iC) the representations and warranties contained limitations in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
paragraph (iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability apply to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damagesClaims resulting from, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated herebyor arising out of any fraudulent act or intentional breach by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Entergy Gulf States Inc)
Purchaser Claims. (a) Seller shall indemnify and hold harmless Purchaser, its successors and assigns, against, and in respect of:
(i) Any and all damages, losses, liabilities, costs, and expenses incurred or suffered by Purchaser that result from, relate to, or arise out of:
(A) any and all liabilities and obligations of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained in this Agreement;
(C) any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser by Seller pursuant hereto; ;
(D) any liability to Purchaser resulting from the failure to obtain consents from the other parties to Minor Contracts; or
(E) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from 125,000 and against all such liabilities for the affected Restaurant relating then only to the first dollar)extent that the aggregate liability of Seller thereunder exceeds such amount; provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 3.4 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.003 million.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty 60 days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 3.1, through 3.4, 3.4 and Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following (except for Sections 4.1, 4.3, 4.4, 4.5 and 4.11) and all such claims shall be deemed to be waived as a result of the Closing. The other covenants contained in Article IV and liability therefor shall survive the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Purchaser Claims. (a) Seller shall indemnify Except as otherwise provided in Section 6.5(f), each of Sellers and CPI, jointly and severally, will indemnify, protect, defend and hold harmless PurchaserPurchasers and their Affiliates, its and each of their officers, directors, employees, attorneys, agents and successors and assignsassigns (collectively, againstthe "Purchaser Indemnified Parties"), from and in respect of:
(i) Any against any and all demands, suits, penalties, fines, liens, judgments, obligations, damages, claims, losses, liabilities, costspayments, costs and expenses, including without limitation reasonable legal, accounting and other expenses in connection therewith and including without limitation costs and expenses incurred in connection with investigations and settlement proceedings ("Losses"), which arise out of, are in connection with, or suffered by Purchaser that result from, relate to, or arise out of:the following (collectively, "Purchaser Claims"):
(Ai) any and all liabilities and obligations of Seller breach or violation of any nature whatsoevercovenant, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant obligation or agreement contained of Sellers or CPI set forth in this Agreement;
(Cii) any misrepresentation breach or breach inaccuracy of warranty the representations or warranties made, as of the Effective Date or as of the Closing Date (as per Sections 9.5 and 9.6), by Seller contained Sellers or CPI in this AgreementArticle 4 (without giving effect to any updates, the Disclosure Memorandumdisclosures or supplements thereto);
(iii) any claims or liability arising out of, or in connection with, including without limitation in connection with the termination of, any certificateIntercompany Arrangements;
(iv) if the Closing occurs, furnished to Purchaser by Seller pursuant hereto; (D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealingsExcluded Assets or Excluded Liabilities, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, including without limitation, reasonable legal fees and expenses) incident the failure of Sellers to pay, discharge or perform any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.Excluded Liabilities as and when due; and
(bv) Notwithstanding if the foregoingClosing occurs, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from and against all such liabilities for the affected Restaurant relating to the first dollar); providedLosses arising out of, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive matters referenced on Schedule 4.8, including without limitation any lost revenue or damages under the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicatedExisting Contracts.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Purchaser Claims. (aSubject to Section 3.3(b), Section 7.1(b), Section 7.3(a) and Section 7.5(a), from and after the Closing, Seller and Dynegy shall indemnify indemnify, defend and hold harmless Purchaser, its Affiliates and each of their respective officers, directors, employees, attorneys, agents, representatives and successors and assignsassigns (collectively, againstthe “Purchaser Group”) from and against any and all demands, suits, penalties, obligations, damages, claims, losses, liabilities, payments, costs and expenses (“Losses”), including reasonable legal, accounting and other fees and expenses in respect connection therewith and costs and expenses incurred in connection with investigations and settlement proceedings, which arise out of, are in connection with or relate to the following (collectively, “Purchaser Claims”), in each case excluding Losses to the extent caused by the sole, joint or concurrent negligence of any Person included in the Purchaser Group but including such Losses to the extent that they are caused by the sole, joint or concurrent negligence, strict liability or other fault of any Person not included in the Purchaser Group:
(i) Any and all damagesany breach or violation of any covenant, losses, liabilities, costs, and expenses incurred obligation or suffered by Purchaser that result from, relate to, or arise out of:
(A) any and all liabilities and obligations agreement of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained Dynegy set forth in this Agreement;
(Cii) any misrepresentation breach or breach inaccuracy of warranty any of the representations or warranties made by Seller contained or Dynegy in this Agreement, the Disclosure Memorandum, Agreement or any certificateof the Ancillary Agreements, furnished whether such representation or warranty is made as of the Effective Date or the Closing Date or in any certificate to Purchaser be delivered by Seller or Dynegy pursuant hereto; provided, that for purposes of determining the amount of Losses sustained or incurred thereby, for purposes of this Section 7.1(a), such representations and warranties shall be interpreted without giving effect to the words “material”, “materially”, “Material Adverse Effect”, or words of similar effect;
(Diii) Seller’s ownership, operation or use of any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result Excluded Assets or Seller’s employment or termination of Seller's dealingsemployment of any Employee or Former Employee;
(iv) the Excluded Liabilities (including any Environmental Condition, agreementEnvironmental Claim, or arrangement Environmental Liability described as an Excluded Liability in Section 2.4(a) or Section 2.4(e), and including any Third Party Claim relating to, in connection with or arising out of the ownership, operation or use of any of the Purchased Assets, to the extent relating to any period of time on or prior to the Closing Date or any other matter relating to the Business or the Purchased Assets, to the extent relating to any period of time on or prior to the Closing Date);
(v) without limiting the obligations under Section 7.1(a)(iv), payment of any Tax relating to Purchased Asset not located on the approximately 20.37 acre parcel of land upon which the Project is located, near Sulphur, Louisiana, to the extent that such PersonTax relates to any period prior to the Closing Date; or
(Evi) any claim arising out Third Party Claim of the operation of the Restaurants prior to the Closingintellectual property infringement.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from and against all such liabilities for the affected Restaurant relating to the first dollar); provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dynegy Acquisition, Inc.)
Purchaser Claims. (a) Except as otherwise provided in Section 12.2.2, Seller shall indemnify will indemnify, defend and hold harmless PurchaserPurchaser and each other member of the Purchaser Group, its successors from and assigns, against, and in respect of:
(i) Any against any and all damages, claims, losses, liabilities, costsobligations, costs and expenses, including reasonable legal, accounting and other expenses, and the costs and expenses incurred or suffered by Purchaser that result from, relate to, or arise out of:
(A) any and all liabilities and obligations of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained in this Agreement;
(C) any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser by Seller pursuant hereto; (D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costssettlements and compromises, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any which arise out of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) relate to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for following (collectively, “Purchaser Claims”): any single Restaurant until the aggregate liability breach or violation by Seller of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from and against all such liabilities for the affected Restaurant relating to the first dollar); provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, Related Agreements or any certificate delivered agreement executed in connection with the transactions contemplated by this Agreement; any breach or inaccuracy of the representations or warranties of Seller set forth herein; any Third Party Claims resulting from or arising out of the development, financing, construction, testing and preparation of the Project for commercial operation or out of Seller’s ownership, use or operation of the Project or any Project Assets prior to and through the Asset Transfer Date, including without limitation actions or claims with respect to tax liabilities, claims by third parties in respect of contract, tort and other liabilities, and liabilities arising under the Financing Arrangements; any Third Party Claims resulting from Seller’s efforts to achieve Substantial Completion and Project Completion after the Closing; any Indemnifiable Loss resulting from or arising out of any Pre-Closing Environmental Conditions; any Indemnifiable Loss resulting from or arising out of the disposal, release or threatened release of Hazardous Materials by or on behalf of Seller or at Seller’s direction or by its or their arrangement; any loss or damages resulting from or arising out of Seller’s ownership or operation of the Excluded Assets after the Closing or that are related to the Excluded Liabilities; any Taxes for which Seller is responsible pursuant to this Agreement Section 10.4; or except as otherwise provided in Section 10.1.3, any additional costs, liabilities or loss of revenues attributable to modifications to any Permit or Consent occurring in connection with the transactions contemplated herein shall survive the consummation transfer of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4such Permit or Consent to Purchaser, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but if such transfer is not resolved completed on or prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Sources: Build Own Transfer Agreement
Purchaser Claims. (a) Except as otherwise provided in Section 12.2(b), the Seller shall indemnify will indemnify, defend and hold harmless Purchaserthe Purchaser and its parents and Affiliates, its and each of their officers, directors, employees, attorneys, agents and successors and assignsassigns (collectively, againstthe “Purchaser Group”), from and in respect of:
(i) Any against any and all damages, claims, losses, liabilities, costsobligations, costs and expenses, including reasonable legal, accounting and other expenses, and the costs and expenses incurred or suffered by Purchaser that result from, relate to, or arise out of:
(A) any and all liabilities and obligations of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained in this Agreement;
(C) any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser by Seller pursuant hereto; (D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costssettlements and compromises, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any which arise out of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) relate to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for following (collectively, “Purchaser Claims”): any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point breach or violation by the Seller will be obligated to indemnify or the Purchaser from and against all such liabilities for the affected Restaurant relating to the first dollar); provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose Project Company of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, Related Agreements or any certificate delivered by or on behalf of Seller pursuant to this Agreement or agreement executed in connection with the transactions contemplated herein shall survive the consummation by this Agreement; any breach or inaccuracy of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and or warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) Seller or the representations Project Company set forth herein; any Third Party Claims resulting from or arising out of the development, financing, construction, testing and warranties contained preparation of the Project for commercial operation or out of the Seller’s or the Project Company’s ownership, use or operation of the Project or any Project Assets prior to and through the Closing Date, including without limitation actions or claims with respect to tax liabilities, claims by third parties in Sections 3.1 through 3.4respect of contract, Section 3.7(g) tort and 3.9 shall survive until other liabilities, and liabilities arising under the expiration Financing Arrangements; any Indemnifiable Loss resulting from or arising out of any applicable statues of limitation provided by lawPre-Closing Environmental Conditions; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months any Indemnifiable Loss resulting from the date or arising out of the Closing. Anything disposal, release or threatened release of Hazardous Substances by or on behalf of the Seller or the Project Company or at the Seller’s or the Project Company’s direction or by its or their arrangement; any loss or damages resulting from or arising out of the Seller’s or the Project Company’s ownership or operation of the Excluded Assets after the Closing or that are related to the contrary notwithstanding, the Survival Period shall be extended automatically to include Excluded Liabilities; any time period necessary to resolve a written claim Taxes for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller or the Project Company is responsible pursuant to Section 11.4; or any additional costs, liabilities or loss of revenues attributable to modifications to any Governmental Approval, Permit or Consent occurring in connection with this Agreement and the transaction contemplated herebytransfer of such Governmental Approval, Permit or Consent to the Purchaser, if such transfer is not completed on or prior to Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Purchaser Claims. (a) Seller shall indemnify indemnify, defend and hold harmless Purchaser, its parents and Affiliates, and each of their officers, directors, employees, attorneys, agents and successors and assignsassigns (collectively, againstthe "Purchaser Group"), from and against any and all demands, suits, penalties, obligations, damages, claims, losses, liabilities, payments, costs and expenses ("Losses"), including reasonable legal, accounting and other expenses in respect connection therewith and costs and expenses incurred in connection with investigations and settlement proceedings, which arise out of, are in connection with, or relate to, the following (collectively, "Purchaser Claims"), in each case, even if such Losses are caused by the sole, joint or concurrent negligence, strict liability or other fault of any Person included in the Purchaser Group or any other Person, except, in the case of any Purchaser Claims under clause (iv), (v), (vi) or (vii) of this Section 7.1(a), to the extent caused by the intentional misconduct or gross negligence of such Person included in the Purchaser Group:
(i) Any and all damagesany breach or violation of any covenant, losses, liabilities, costs, and expenses incurred obligation or suffered by Purchaser that result from, relate to, or arise out of:
(A) any and all liabilities and obligations agreement of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained set forth in this Agreement;
(Cii) any breach or inaccuracy of any of the representations or warranties made by Seller in this Agreement in ARTICLE 4 or by Guarantor in the Guaranty, provided that for purposes of determining whether there has been a misrepresentation or breach of a representation or warranty by Seller contained in and the amount of Losses sustained or incurred thereby, for purposes of this AgreementSection 7.1(a) only, such representations and warranties shall be interpreted without giving effect to the Disclosure Memorandumwords "material", "materially", "Material Adverse Effect", or words of similar effect;
(iii) if the Closing occurs, any certificate, furnished and all Environmental Losses to Purchaser by Seller pursuant hereto; (D) the extent relating to any claim by period of time on or prior to the Closing Date and directly or indirectly arising out of or relating to any Person for any brokerage or finder's fee or commission emissions of NOx in respect excess of the transactions contemplated hereby as a result limitations of or non-compliance with the limitations or other terms or requirements of Seller's dealingsNOx emissions permit;
(iv) if the Closing occurs, agreementSeller's ownership, operation or arrangement with such Personuse of any of the Excluded Assets;
(v) if the Closing occurs, the failure of Seller to pay, perform or discharge any of the Excluded Liabilities (other than an Excluded Design Liability) as and when due;
(vi) if the Closing occurs, any Third Party Claim relating to or arising out of the ownership, operation or use of any of the Purchased Assets, including the Project to the extent relating to any period of time on or prior to the Closing Date; or
(Evii) if the Closing occurs, any claim arising out other matter relating to the Business or the Purchased Assets, to the extent relating to any period of the operation of the Restaurants time on or prior to the Closing.
(ii) Any and all actionsClosing Date, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident or relating to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection Excluded Asset or Excluded Liability (i) aboveother than an Excluded Design Liability).
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from and against all such liabilities for the affected Restaurant relating to the first dollar); provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Purchaser Claims. (a) Seller shall ComEd will indemnify and hold harmless Purchaser---------------- Purchaser and its Affiliates, its and each of their officers, directors, employees, partners, attorneys, agents and successors and assignsassigns (collectively, againstthe "Purchaser Group"), from and in respect of:
(i) Any and against all damages, claims, losses, liabilitiesfines, costspenalties, liabilities and expenses incurred or suffered by Purchaser that result fromexpenses, relate toincluding reasonable legal, or accounting and other expenses, which arise out of:of or relate to the following (collectively, "Purchaser Claims"):
(A1) any and all liabilities and obligations of Seller breach by ComEd of any nature whatsoever, except for the Assumed Liabilities;
(B) of its covenants in this Agreement or any failure by Seller of ComEd to carry out perform any covenant or agreement contained of its obligations in this Agreement;
(C2) any misrepresentation or breach of any warranty by Seller or the inaccuracy of any representation of ComEd contained in this Agreement, the Disclosure Memorandum, Agreement (excluding Section 3.15 (Environmental ------------ Matters)) or any certificate, furnished to Purchaser by Seller pursuant hereto; (D) any claim by any Person for any brokerage or finder's fee or commission in respect breach of the transactions contemplated hereby certificate delivered by ComEd pursuant to Section 7.1 (Compliance With Provisions) as to which a result Notice of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants Claim is ----------- received by ComEd prior to the Closing.first anniversary of the Closing Date; and
(ii3) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from and against all such liabilities for the affected Restaurant relating to the first dollar)Excluded Liabilities; provided, however, that liabilities arising ComEd shall be required to indemnify and hold harmless under clause (2) of this Section 6.2(a) (Indemnification by ComEd--Purchaser -------------- Claims) with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject Purchaser Claims incurred by the Purchaser Group only to the foregoing threshold extent that the aggregate amount of such Purchaser Claims exceeds Twenty Million Dollars ($20,000,000) (but only in the amount of such excess); and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall provided further, that the aggregate liability of Seller ComEd under clause (2) of this Section 8.1(a)(i)(C6.2(a) (and Section 8.1(a)(iiIndemnification by ComEd--Purchaser Claims) to shall not exceed -------------- twenty percent (20%) of the extent Purchase Price. For purposes of computing the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller indemnification payment under this Section 8.1 6.2 (Indemnification by ----------- ComEd), any such indemnification payment shall be computed net of any tax benefit to Purchaser from the matter giving rise treated as an adjustment to the claim Purchase Price for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability aroseall Tax purposes.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Purchaser Claims. (a) Seller shall defend, indemnify and hold harmless Purchaser and its officers, directors, agents, employees and Affiliates and Purchaser, its 's successors and assignsassigns ("Purchaser Parties"), against, and in respect of:
(i) Any and all damages, losses, liabilities, costs, and expenses incurred or suffered by Purchaser Parties that result from, relate to, or arise out of:
(A) any and all liabilities and obligations of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained in this AgreementAgreement or liability related to noncompliance with any bulk sales laws;
(C) any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser by Seller pursuant hereto; or
(D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser Parties from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant 100,000 (at which point the Seller will be obligated to indemnify the Purchaser Parties from and against all such liabilities for the affected Restaurant relating back to the first dollar); provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.first
Appears in 1 contract
Purchaser Claims. (a) Seller shall indemnify Sellers, jointly and severally, will indemnify, defend and hold harmless Purchaserthe Purchasers and their respective parents and Affiliates, its and each of their officers and directors, and successors and assignsassigns (collectively, againstthe “Purchaser Group”), from and in respect of:
(i) Any against any and all demands, suits, penalties, obligations, damages, claims, losses, liabilities, costspayments, costs and expenses (“Losses”), that are incurred by or awarded against any member of the Purchaser Group, including reasonable legal, accounting, and other expenses incurred in connection therewith, which arise out of, are in connection with, or suffered by Purchaser that result from, relate to, or arise out of:the following (collectively, “Purchaser Claims”):
(Ai) any and all liabilities and obligations of Seller material breach or violation of any nature whatsoevercovenant, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant obligation, or agreement contained of Sellers set forth in this Agreement;
(Cii) any misrepresentation breach or inaccuracy of the representations or warranties made by Sellers in this Agreement or in any certificate delivered by Sellers at Closing;
(iii) a failure of a representation or warranty made by Sellers in this Agreement or in any certificate delivered by Sellers at Closing to be true and correct, where such failure does not constitute a breach of such representation or warranty by Seller contained but would constitute a breach of such representation or warranty if any limitation or qualification as to knowledge, materiality or a Material Adverse Effect set forth in this Agreementsuch representation or warranty were disregarded;
(iv) if the Closing occurs, the Disclosure Memorandum, or Excluded Assets (including any certificate, furnished to Purchaser by Seller pursuant hereto; (D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such PersonNon-Transferred Excluded Matter); or
(Ev) any claim arising out of if the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from and against all such liabilities for the affected Restaurant relating to the first dollar); provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this AgreementClosing occurs, the Disclosure Memorandum, or Excluded Liabilities (including any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicatedNon-Transferred Excluded Matter).
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Purchaser Claims. (a) Seller shall indemnify and hold harmless Purchaser, its successors and assigns, against, and in respect of:
(i) Any and all damages, losses, liabilities, costs, and expenses incurred or suffered by Purchaser that result from, relate to, or arise out of:
(A) any and all liabilities and obligations of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained in this Agreement;
(C) any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser by Seller pursuant hereto; or
(D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from 125,000 and against all such liabilities for the affected Restaurant relating then only to the first dollar)extent that the aggregate liability of Seller thereunder exceeds such amount; provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 3.4 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.003,000,000.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty sixty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, 3.4 and Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months one year from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following (except for Sections 4.1, 4.3, 4.4, and 4.11) and all such claims shall be deemed to be waived as a result of the Closing. The other covenants contained in Sections 4.1, 4.3, 4.4 and 4.11 and liability therefor shall survive the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Purchaser Claims. (a) Seller Sellers shall jointly and severally indemnify and hold harmless Purchaser, its stockholders and affiliates, their respective officers, directors, employees and agents, and the successors and assignsassigns of each of the foregoing, against, and in respect of:
(i) Any and all claims, damages, losses, liabilities, costs, and expenses (collectively, "Losses") incurred or suffered by Purchaser, Purchaser's stockholders and affiliates, and their respective officers, directors, employees and agents, and the successors and assigns of each of the foregoing (collectively, the "Purchaser Indemnitees") that result from, relate to, or arise out of:
of (A) any and all liabilities and obligations breach of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any or failure by any Seller to carry out any covenant or agreement contained in this Agreement;
any Seller Transaction Document; (CB) any misrepresentation or breach of a representation or warranty by any Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser by Seller pursuant heretoTransaction Document; (DC) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's the dealings, agreement, or arrangement with such Personof any Seller or any of their respective affiliates; or
(D) any liability of any Seller that is not an Assumed Liability; and (E) any claim arising out asset of the operation of the Restaurants prior to the Closingany Seller that is not an Acquired Asset.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, amounts paid in settlement and reasonable legal and accounting fees and expenses) incident to any of the foregoing foregoing, including without limitation all such expenses reasonably incurred in mitigating any damages resulting to the Purchaser Indemnitees from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller Sellers shall have no liability for indemnification or otherwise with respect to claims a breach of the representation contained in Section 3.15(b) in connection with a particular Lease to the extent that the Purchaser has waived compliance with the closing condition under Section 8.1(a)(i)(C6.1(l) with respect to such Lease. Sellers shall have no liability for indemnification or otherwise with respect to Section 7.1(a)(i)(B) (and Section 8.1(a)(ii7.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C7.1(a)(i)(B)) for any single Restaurant until the aggregate liability of Seller the Sellers thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from 250,000 and against all such liabilities for the affected Restaurant relating then only to the first dollar)extent that the aggregate liability of the Sellers hereunder exceeds such amount; provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.through
Appears in 1 contract
Purchaser Claims. (a) Seller shall indemnify and hold harmless PurchaserPurchasers, its their successors and assigns, against, and in respect of:
(i) Any and all damages, claims, losses, liabilities, costs, and expenses incurred or suffered by Purchaser Purchasers that result from, relate to, or arise out of:
(A) any and all liabilities and obligations of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained in this Agreement;
(C) except as otherwise provided in Section 9.1, any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser Purchasers by Seller pursuant hereto; or
(D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser Purchasers from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability (for indemnification or otherwise otherwise) with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant unless and until the aggregate liability of Seller thereunder exceeds $60,000.00 500,000, whereupon Seller shall have liability for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser such indemnification from and against all such liabilities for the affected Restaurant relating to the first dollar)dollar as if such threshold did not exist; provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.5(a), 3.5(b), 3.5(c), 3.7(g) ), and 3.9 3.8 through 3.10 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser Purchasers from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser Purchasers with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty sixty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 3.1, through 3.4, 3.5(a), 3.5(b), and 3.5(c) and Section 3.7(g) and 3.9 any obligations arising pursuant to the Deeds shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months two years from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, The covenants contained in Section 4.1 through 4.4 and 4.10 which 4.11 and liability therefor shall survive the Closing. After the Closing, Purchaser Purchasers may not assert any claim against Seller for breach of any covenant contained in any other Section of Article IV following and all such claims shall be deemed to be waived as a result of the Closing.
(f) Purchaser Purchasers shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's Purchasers' ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser Purchasers shall make commercially use their reasonable best efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Purchaser Claims. (a) Seller shall ComEd will indemnify and hold harmless Purchaser---------------- Purchaser and its Affiliates, its and each of their officers, directors, employees, partners, attorneys, agents and successors and assignsassigns (collectively, againstthe "PURCHASER GROUP"), from and in respect of:
(i) Any and against all damages, claims, losses, liabilitiesfines, costspenalties, liabilities and expenses incurred or suffered by Purchaser that result fromexpenses, relate toincluding reasonable legal, or accounting and other expenses, which arise out of:of or relate to the following (collectively, "PURCHASER CLAIMS"):
(A1) any and all liabilities and obligations of Seller breach by ComEd of any nature whatsoever, except for the Assumed Liabilities;
(B) of its covenants in this Agreement or any failure by Seller of ComEd to carry out perform any covenant or agreement contained of its obligations in this Agreement;
(C2) any misrepresentation or breach of any warranty by Seller or the inaccuracy of any representation of ComEd contained in this Agreement, the Disclosure Memorandum, Agreement (excluding Section 3.15 ------------ (Environmental Matters)) or any certificate, furnished to Purchaser by Seller pursuant hereto; (D) any claim by any Person for any brokerage or finder's fee or commission in respect breach of the transactions contemplated hereby certificate delivered by ComEd pursuant to Section 7.1 (Compliance With Provisions) as to which a result ----------- Notice of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants Claim is received by ComEd prior to the Closing.first anniversary of the Closing Date; and
(ii3) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from and against all such liabilities for the affected Restaurant relating to the first dollar)Excluded Liabilities; provided, however, that liabilities arising ComEd shall be required to indemnify and hold harmless under clause (2) of this Section 6.2(a) (Indemnification by ComEd--Purchaser -------------- Claims) with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 hereof shall not be subject Purchaser Claims incurred by the Purchaser Group only to the foregoing threshold extent that the aggregate amount of such Purchaser Claims exceeds Twenty Million Dollars ($20,000,000) (but only in the amount of such excess); and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall provided further, that the aggregate liability of Seller ComEd under clause (2) of this Section 8.1(a)(i)(C6.2(a) (and Section 8.1(a)(iiIndemnification by ComEd--Purchaser Claims) to shall not exceed -------------- twenty percent (20%) of the extent Purchase Price. For purposes of computing the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00.
(c) The amount of any liability of Seller indemnification payment under this Section 8.1 6.2 (Indemnification by ----------- ComEd), any such indemnification payment shall be computed net of any tax benefit to Purchaser from the matter giving rise treated as an adjustment to the claim Purchase Price for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability aroseall Tax purposes.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Purchaser Claims. (a) Seller shall indemnify and hold harmless Purchaser, its successors and assigns, against, and in respect of:
(i) Any and all damages, losses, liabilities, costs, and expenses incurred or suffered by Purchaser that result from, relate to, or arise out of:
(A) any and all liabilities and obligations of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained in this Agreement;
(C) any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser by Seller pursuant hereto; or
(D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from 300,000.00 and against all such liabilities for the affected Restaurant relating then only to the first dollar)extent that the aggregate liability of Seller thereunder exceeds such amount; provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 3.4 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.004,375,000.00; provided, however, that liabilities arising with respect to Sections 3.1 through 3.4 hereof shall not be subject to the foregoing cap and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty sixty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 through 3.4, 3.4 and Section 3.7(g) and 3.9 3.7 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months one year from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any other covenant contained in Article IV following after six months from the date of Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Purchaser Claims. (a) Seller shall indemnify and hold harmless Purchaser, its successors and assigns, against, and in respect of:
(i) Any and all damages, losses, liabilities, costs, and expenses incurred or suffered by Purchaser that result from, relate to, or arise out of:
(A) any and all liabilities and obligations of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained in this Agreement;
(C) any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser by Seller pursuant hereto; or
(D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from 200,000 and against all such liabilities for the affected Restaurant relating then only to the first dollar)extent that the aggregate liability of Seller thereunder exceeds such amount; provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 3.4 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.005.0 million.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty sixty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 3.1, through 3.4, 3.4 and Section 3.7(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months one year from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following (except for Sections 4.1, 4.3, 4.4, and 4.11) and all such claims shall be deemed to be waived as a result of the Closing. The other covenants contained in Sections 4.1, 4.3, 4.4, and 4.11 and liability therefor shall survive the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
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Purchaser Claims. (a) Seller shall indemnify and hold harmless Purchaser, its successors and assigns, against, and in respect of:
(i) Any and all damages, losses, liabilities, costs, and expenses incurred or suffered by Purchaser that result from, relate to, or arise out of:
(A) any and all liabilities and obligations of Seller of any nature whatsoever, except for the Assumed Liabilities;
(B) any failure by Seller to carry out any covenant or agreement contained in this Agreement;
(C) any misrepresentation or breach of warranty by Seller contained in this Agreement, the Disclosure Memorandum, or any certificate, furnished to Purchaser by Seller pursuant hereto; or
(D) any claim by any Person for any brokerage or finder's fee or commission in respect of the transactions contemplated hereby as a result of Seller's dealings, agreement, or arrangement with such Person; or
(E) any claim arising out of the operation of the Restaurants prior to the Closing.
(ii) Any and all actions, suits, claims, proceedings, investigations, demands, assessments, audits, fines, judgments, costs, and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing including all such expenses reasonably incurred in mitigating any damages resulting to Purchaser from any matter set forth in subsection (i) above.
(b) Notwithstanding the foregoing, Seller shall have no liability for indemnification or otherwise with respect to claims under Section 8.1(a)(i)(C) (and Section 8.1(a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) for any single Restaurant until the aggregate liability of Seller thereunder exceeds $60,000.00 for the affected Restaurant (at which point the Seller will be obligated to indemnify the Purchaser from 17,500 and against all such liabilities for the affected Restaurant relating then only to the first dollar)extent that the aggregate liability of Seller thereunder exceeds such amount; provided, however, that liabilities arising with respect to Sections 3.1 through 3.4, 3.7(g) and 3.9 3.4 hereof shall not be subject to the foregoing threshold and any liabilities arising with respect to such matters shall not be taken into account in computing aggregate liabilities for the purpose of applying such threshold amount to liabilities arising under other Sections subject thereto. In no event shall the aggregate liability of Seller under Section 8.1(a)(i)(C) (and and
Section 8.1(a)(ii8.1 (a)(ii) to the extent the items covered thereby relate back to Section 8.1(a)(i)(C)) exceed $15,000,000.00500,000.
(c) The amount of any liability of Seller under this Section 8.1 shall be computed net of any tax benefit to Purchaser from the matter giving rise to the claim for indemnification hereunder and net of any insurance proceeds received by Purchaser with respect to the matter out of which such liability arose.
(d) The representations and warranties of Seller contained in this Agreement, the Disclosure Memorandum, or any certificate delivered by or on behalf of Seller pursuant to this Agreement or in connection with the transactions contemplated herein shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect for the periods specified below ("Survival Period"):
(i) the representations and warranties contained in Section 3.5(d) shall be of no further force and effect after thirty days from the date of the Closing;
(ii) the representations and warranties contained in Sections 3.1 3.1, through 3.4, 3.4 and Section 3.7(g3.8(g) and 3.9 shall survive until the expiration of any applicable statues of limitation provided by law; and
(iii) all other representations and warranties of Seller shall be of no further force and effect after eighteen months one year from the date of the Closing. Anything to the contrary notwithstanding, the Survival Period shall be extended automatically to include any time period necessary to resolve a written claim for indemnification which was made in reasonable detail before expiration of the Survival Period but not resolved prior to its expiration, and any such extension shall apply only as to the claims so asserted and not so resolved within the Survival Period. Liability for any such item shall continue until such claim shall have been finally settled, decided, or adjudicated.
(e) Except for claims arising under Sections 4.1, 4.3, 4.4, and 4.10 which shall survive the Closing, Purchaser may not assert any claim against Seller for breach of any covenant contained in Article IV following (except for Sections 4.1, 4.3, 4.4, and 4.11) and all such claims shall be deemed to be waived as a result of the Closing. The other covenants contained in Article IV and liability therefor shall survive the Closing.
(f) Purchaser shall provide written notice to Seller of any claim for indemnification under this Article as soon as practicable; provided, however, that failure to provide such notice on a timely basis shall not bar Purchaser's ability to assert any such claim except to the extent that Seller is actually prejudiced thereby. Purchaser shall make commercially reasonable efforts to mitigate any damages, expenses, etc. resulting from any matter giving rise to liability of Seller under this Article.
(g) Notwithstanding any other provision of this Article VIII, the aggregate principal amount of the obligation of Seller under this Article VIII shall not exceed the gross proceeds actually received by the Seller in connection with this Agreement and the transaction contemplated hereby.
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