Limitations on Claims. 6.1 The definitions and rules of interpretation in this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter 6.2 This clause limits the liability of the Seller in relation to any Claim 6.3 The liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000 6.4 The Seller shall not be liable for a Claim unless: 6.4.1 the amount of a Substantiated Claim, or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,000; and 6.4.2 the amount of all Substantiated Claims that are not excluded under clause 6.4.1 when taken together, exceeds £10,000, in which case the whole amount (and not just the amount by which the limit in this clause 6.4.2 is exceeded) is recoverable by the Buyer 6.5 The Seller is not liable for any Claim to the extent that the Claim: 6.5.1 relates to matters Disclosed; or 6.5.2 relates to any matter specifically and fully provided for in the Accounts 6.6 The Seller is not liable for a Claim unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as far as it is known to the Buyer and the amount claimed is within the period of 6 months beginning with the Completion Date 6.7 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES 7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion 7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases 7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM 7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM 7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis) 7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto 7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them 7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee 7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement 7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Letter
Appears in 2 contracts
Sources: Share Purchase Agreement (TRM Corp), Share Purchase Agreement (TRM Corp)
Limitations on Claims. 6.1 8.1 The definitions and rules aggregate liability of interpretation in this clause apply in the Warrantor for all claims under this Agreement “Claim” (other than a claim for arising as a result of a breach of clause 11) shall not exceed the Purchase Price actually received by the Sellers.
8.2 The Warrantor shall not be under any of the Warranties “Substantiated Claim” a Claim liability in respect of which any Claim(s) unless:
8.2.1 the amount of any Claim (or the aggregate amount of more than one Claim where such Claims arise from the same or related subject matter) exceeds £2,000 (excluding any costs or interest associated with such Claim); and
8.2.2 the aggregate cumulative liability is admitted by of the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies Sellers in respect of any and all Claim(s) which when taken together exceeds £15,000 in which case the whole amount of such adjudication, or Claim(s) and not just the parties are debarred excess above £15,000 shall be recoverable by passage the Buyer. For the purposes of time or otherwise from making an appeal A this clause 8.2 a Claim is connected with another Claim or Substantiated if the Claim if they all arise out of the occurrence of arises from the same event or set of circumstances, or relate to the same subject matter.
6.2 This clause limits the liability of the Seller in relation to any Claim
6.3 8.3 The liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000
6.4 The Seller Warrantor shall not be liable for a Claim, Indemnity Claim unlessor a claim under the Tax Covenant unless notice in writing of the Claim, Indemnity Claim or a claim under the Tax Covenant, summarising the nature of the Claim, Indemnity Claim or a claim under the Tax Covenant (in so far as it is known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Sellers:
6.4.1 8.3.1 in the amount case of a Substantiated claim made under the Tax Warranties, on or before the seventh anniversary of Completion;
8.3.2 in the case of a claim made under the Tax Covenant, on or before the seventh anniversary of Completion;
8.3.3 in the case of an Indemnity Claim, on or before the fourth anniversary of a series of connected Substantiated Claims Completion PROVIDED THAT the indemnity contained within clause 10.1.2 shall not be subject to this limitation; or
8.3.4 in any other case, on or before the date which is 30 months after Completion.
8.4 Any Claim, an Indemnity Claim or claim under the Tax Covenant (as applicable) in respect of which that Substantiated notice shall have been given in accordance with clause 8.3 above shall be deemed to have been irrevocably withdrawn and lapsed (not having been previously satisfied, settled or withdrawn) if proceedings in respect of such Claim, an Indemnity Claim is one, exceeds £1,000; andor claim under the Tax Covenant have not been issued and served on the Sellers before the expiry of 6 (six) months after the date upon which such notice shall have been so given.
6.4.2 the amount of all Substantiated Claims that are 8.5 The Sellers shall not excluded under clause 6.4.1 when taken together, exceeds £10,000, in which case the whole amount (and not just the amount by which the limit in this clause 6.4.2 is exceeded) is recoverable by the Buyer
6.5 The Seller is not be liable for any a Claim to the extent that the Claim:
6.5.1 8.5.1 relates to matters Disclosed;
8.5.2 is covered by a policy of insurance effected by the Company, the Buyer or an Assignee and the Company, Buyer or an Assignee is entitled to make a claim under such insurance policy, in which case the Buyer shall only be permitted to bring a Claim against the Warrantor to the extent that the Company, the Buyer, an Assignee and/or the Warrantor receive notification from the insurers that the Claim is not covered by the relevant insurance policy;
8.5.3 arises or is increased as a result of any introduction, enactment, change, amendment or withdrawal of any law, enactment, regulation, rules of any regulator or administrative practice or guidance occurring after the Completion Date (where that introduction, enactment, change, amendment or withdrawal purports to have retrospective effect in whole or in part);
8.5.4 arises or is increased as a result of an act or omission of the Buyer or an Assignee;
8.5.5 arises as a result of any change in the accounting or Taxation policies or practice of the Company, the Buyer or an Assignee or in the method of submitting tax returns after Completion, save to the extent that it arises as a result of the Company, the Buyer or an Assignee:
8.5.5.1 implementing those changes that the Company is legally required to comply with or implement; or
6.5.2 relates 8.5.5.2 implementing generally accepted accounting policies and principles within the United Kingdom; or
8.5.5.3 arises from any winding up or cessation of the Company’s business after Completion.
8.6 The Warrantor shall indemnify and keep indemnified the Buyer, the Company and an Assignee in respect of all costs, charges and expenses (excluding management time) incurred by the Buyer, the Company or an Assignee in relation to making a claim under or seeking to make a claim under any insurance policy pursuant to clause 8.5.2 and any increases in insurance policy premiums incurred by the Buyer, the Company or an Assignee as a result of making a claim or seeking to make a claim pursuant to the clause 8.5.2.
8.7 In the event that the Buyer, the Company or an Assignee is at any time entitled to recover or otherwise claim reimbursement from a third party in respect of any matter specifically or circumstance giving rise to a Claim the following provisions shall apply:
8.7.1 the Buyer, the Company or an Assignee (as appropriate) shall take all necessary steps to enforce such recovery or seek such reimbursement from the relevant third party and fully provided for shall do so before making a Claim against the Warrantor;
8.7.2 the liability of the Warrantor in respect of the related Claim shall be reduced by the amount (if any) actually recovered from the relevant third party (less all reasonable costs, charges and expenses incurred by the Buyer in recovering that sum), or extinguished if the amount recovered exceeds the amount of the relevant Claim; and
8.7.3 if the Warrantor makes a payment to the Buyer, the Company or an Assignee in respect of a Claim and the Buyer subsequently recovers from a third party a sum which is referable to that Claim, the Buyer shall promptly repay to the Warrantor the lower of:
8.7.3.1 the amount recovered from such third party (less all reasonable costs, charges and expenses incurred by the Buyer, the Company or an Assignee); and
8.7.3.2 the amount paid to the Buyer by the Warrantor in respect of the relevant Claim.
8.7.4 If any amount is repaid to the Warrantor in accordance with clause 8.7.3, the amount so repaid shall be deemed to have never been paid by the Warrantor to the Buyer. For the purposes of calculating the Sellers total liability pursuant to clause 8.1.
8.8 The provisions of this clause 8.8 shall apply in the Accounts
6.6 The Seller event that any claim is not liable for made or threatened by any third party against the Buyer, the Company or an Assignee, which may reasonably be considered likely to give rise to a Claim unless or any other claim under this Agreement (Third Party Claim). In the event of a Third Party Claim, the Buyer has given the Seller notice shall:
8.8.1 as soon as reasonably practicable, and in writing any event within 10 Business Days of the Claimdate upon which the Buyer becomes aware of the Third Party Claim give written notice of the Third Party Claim to the Warrantor, summarising specifying in reasonable detail the nature of the Third Party Claim;
8.8.2 keep the Warrantor fully informed of the progress of, and all material developments in relation to, the Third Party Claim as far as it is known and provide the Warrantor with copies of all information and correspondence relating to such claim; and
8.8.3 consult with and take into account any requests, assistance or information made by or offered to the Buyer and by the amount claimed is within Warrantor in relation to such Third Party Claim. For the period avoidance of 6 months beginning with doubt, the Completion DateWarrantor shall be entitled to assist the Buyer in relation to any Third Party Claim, but shall not seize conduct of any such matter without the prior consent of the Buyer.
6.7 8.9 Nothing in this clause 6 8 or Schedule 5 applies to exclude or limit the liability of the Warrantor:
8.9.1 to the extent that a Claim that or a claim under the Tax Covenant arises or is delayed as a result of dishonesty, fraud, wilful willful misconduct or wilful willful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIESSellers; or
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company 8.9.2 in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings a breach of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained Warranties in paragraph 1 and 2 of Part 1 of Schedule 4.
8.10 The Sellers shall not plead the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred Limitation A▇▇ ▇▇▇▇ in respect of any claims made under the Property Leases and in respect of Tax Warranties or Tax Covenant up to seven years after the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure LetterCompletion Date.
Appears in 2 contracts
Sources: Share Purchase Agreement (Argentum 47, Inc.), Share Purchase Agreement (Argentum 47, Inc.)
Limitations on Claims. 6.1 The definitions and rules of interpretation 10.1 Save as provided in clause 10.7, the provisions of:
10.1.1 this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause 10 limits the liability of the Seller in relation to any Claim and (where specifically provided) any Tax Claim; and
6.3 10.1.2 Part 3 of Schedule 3 limits the liability of the Seller in relation to any Tax Claim.
10.2 The aggregate liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000an amount equal to the Purchase Price plus the Actual Outstanding Intercompany Balances and the CSSL Non-Core Payable.
6.4 10.3 The Seller shall not be liable for a Claim unless:
6.4.1 or a Tax Warranty Claim unless the amount of a Substantiated Claimthe Seller's liability in respect of such Claim or Tax Warranty Claim (together with any connected Claims), or of a series of connected Substantiated Claims of which that Substantiated Claim is one, when aggregated exceeds £1,000; and
6.4.2 100,000 (the amount of all Substantiated “Claims that are not excluded under clause 6.4.1 when taken together, exceeds £10,000Threshold”), in which case the Seller shall be liable for the whole amount claimed (and not just the amount by which the limit Claims Threshold in this clause 6.4.2 10.3 is exceeded) ). For the purposes of this clause 10.3, a Claim is recoverable by connected with another Claim if the Buyer
6.5 The Seller is not liable for any Claim relevant claims arise from the same event or set of circumstances, or relate to the extent that the Claim:same subject matter.
6.5.1 relates to matters Disclosed; or
6.5.2 relates to any matter specifically and fully provided for in the Accounts
6.6 10.4 The Seller is not liable for a Claim unless the Buyer has given the Seller shall give notice in writing to the Seller as soon as reasonably practicable of the Claimany actual or potential Claim of which it shall become aware, summarising the nature of the Claim as (in so far as it is known to the Buyer and Buyer) and, as far as is reasonably practicable, the amount claimed is within claimed.
10.5 The Seller shall not be liable for a Claim unless notice thereof shall have been given in accordance with clause 10.4 by or on behalf of the period Buyer to the Seller prior to the third anniversary of 6 months beginning with Completion.
10.6 The Seller shall not be liable for a Claim or a Tax Warranty Claim to the Completion Dateextent that the Claim (or Tax Warranty Claim, as the case may be) relates to matters Disclosed.
6.7 10.7 Nothing in this clause 6 10 or Schedule 3 or the Disclosure Letter applies to exclude or limit the liability of the Seller:
10.7.1 to the extent that a Claim that or a Tax Claim arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment fraud by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASESadvisers; or
10.7.2 in respect of a breach of any of the warranties in paragraph 1.1, COVENANT & INDEMNITIESparagraph 1.2, paragraph 2.1, paragraph 2.2, paragraph 2.3, paragraph 2.6, paragraph 8 or paragraph 16.2 or paragraph 19 of Part 1 of Schedule 2.
7.1 10.8 Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn), and no new Claim may be made in respect of the facts giving rise to such withdrawn Claim unless legal proceedings in respect thereof have been both issued to and served on the Seller within nine months of the giving of written notice of the Claim.
10.9 No liability shall attach to the Seller by reason of any breach of any of the Warranties to the extent that the same loss has been recovered by the Buyer under any other terms of this agreement or under a Business Transfer Agreement or under any other document entered into pursuant hereto and accordingly the Buyer may only recover once in respect of the same loss.
10.10 The Seller shall not be liable for breach of any of the Warranties to the extent that the subject of the Claim has been made good or is otherwise compensated for without cost to the Buyer.
10.11 Subject to the Seller indemnifying the Buyer in accordance with clause 10.13, if in respect of any matter which would give rise to a Claim, the Buyer or any member of the Buyer’s Group is entitled to claim under a policy of insurance, then the Buyer or any member of the Buyer’s Group (as appropriate) shall claim against its insurance and use reasonable endeavours to pursue such claims and any such Claim shall then reduce by the amount recovered or be extinguished, taking into account any Tax on the insurance proceeds, any reasonable costs incurred in such recovery and any excess and/or premium payable as a result of the Claim. The Seller undertakes and agrees in respect of any claim under any policy of insurance under this clause 10.11 that the time limit for bring such a Claim shall be the later of the date specified in clause 10.5 or the date falling 6 months after the date on which the Buyer receives written notice from the insurer stating that those losses in respect of which the Claim is made are not covered or recoverable by a policy of insurance.
10.12 Subject to the Seller indemnifying the Buyer in accordance with clause 10.13, where the Buyer or any member of the Buyer’s Group is at any time entitled to recover from some other person (other than an insurer) any sum in respect of any matter giving rise to a Claim the Buyer shall, and shall procure that the Property Leases are properly assigned at member of the SellerBuyer’s cost Group concerned shall, take reasonable steps to TRM mitigate its loss in accordance with its common law duty to enforce such recovery and, in the event that the Buyer or any member of the Buyer’s Group shall recover any amount from such other person (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion other than an insurer), the amount of the claim against the Seller shall use all be reduced by the amount recovered (less any reasonable endeavours costs incurred in such recovery and less any Tax attributable to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the recovery).
10.13 The Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 indemnify the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all ratesproperly vouched costs, water rates, insurance premiums, telephone, electricity and gas charges and expenses that are properly incurred by the Buyer (or any other outgoings member of an annual or recurring nature (apportioned on the Buyer’s Group) as a day to day basis)
7.3.3 consequence of any actions taken at the request of the Seller will procure that ATM will in accordance with clause 10.11 and clause 10.12, and the Seller shall pay to the Company amounts equal Buyer (or any other member of the Buyer’s Group) within ten Business Days of written demand such costs, charges and expenses.
10.14 If the Seller pays at any time to the rents reserved by Buyer or any member of the Property Leases as and when the rents fall due Buyer’s Group an amount pursuant to the Property Leases and a Claim or under any other provisions of this agreement and the Buyer or member of the Buyer’s Group subsequently recovers from some other person any sum in respect of all or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained subject matter of such Claim, the Buyer shall, or shall procure that the relevant member of the Buyer’s Group shall, pay to the Seller the lesser of (i) the sum recovered from the other person less any reasonable costs and expenses incurred in obtaining such recovery and less any Tax attributable to the recovery, and (ii) the amount previously paid to the Buyer by the Seller less any Tax attributable to it.
10.15 No Claim shall lie against the Seller to the extent that such Claim is attributable to any voluntary act, omission, transaction or arrangement carried out by the Buyer or a member of the Buyer’s Group on or after Completion done or omitted otherwise than in the Property Leases are fully observed ordinary course of business of the Buyer or the relevant member of the Buyer’s Group, which the Buyer or the relevant member of the Buyer’s Group was actually aware would give rise to such Claim and, for this purpose, an act, omission, transaction or arrangement shall be deemed not to be voluntary if it is required in order to comply with mandatory statutory or regulatory requirements, to implement the Transaction or is pursuant to a legally binding obligation entered into on or before Completion.
10.16 No liability shall arise in respect of any breach of any of the Warranties to the extent that liability for such breach occurs or is increased directly or indirectly as a result of any legislation not in force on or prior to the date of this agreement or as a result of the withdrawal of any extra-statutory concession or other agreement or arrangements currently granted by or made with any governmental authority or Taxation Authority or as a result of any change after the date of this agreement of any generally accepted interpretation or application of any legislation or the enforcement policy or practice of the relevant authorities or as a result of the withdrawal of any extra-statutory concession or any other formal agreement or arrangements with any Taxation Authority (whether or not having the force of law) currently granted by or made with any Taxation Authority, unless such formal agreement or arrangement is withdrawn due to an error, omission or fault of the Seller or of any Group Company or as a result of any acts or omissions of any Group Company prior to Completion.
10.17 The Buyer warrants to the Seller that there is no matter or circumstance within its actual knowledge at the date of this agreement which it is actually aware is inconsistent with the Warranties set out in paragraphs 12 and performed 13 of Schedule 2 and shall indemnify which the Company against any breach, non-observance, or non-performance Buyer is actually aware would give rise to a material claim under the Warranties set out in paragraphs 12 and 13 of those covenants, obligations, conditions and stipulations Schedule 2 (save as aforesaidDisclosed).
10.18 Nothing in this agreement shall limit the Buyer’s obligation to mitigate its loss under general law save that, where the Seller does not elect to take conduct of Proceedings pursuant to clause 10.22.3, the Seller acknowledges that no Group Company will have any operational management or employees and will therefore need to engage professional advisers and consultants to deal with such Proceedings.
10.19 The provisions of clauses 10.20 to 10.24 shall apply in the event that any claim is made or threatened by any third party against the Buyer, the Company or any Subsidiary, which may reasonably be considered likely to give rise to a Claim (a Third Party Claim).
10.20 In the event of a Third Party Claim, subject to the Seller indemnifying the Buyer in accordance with Clause 10.23 the Buyer shall:
10.20.1 as soon as reasonably practicable, and in any event within 20 Business Days of the date upon which the Buyer (or any member of the Buyer’s Group) becomes actually aware of the Third Party Claim, give written notice of the Third Party Claim to the Seller, specifying in reasonable detail the nature of the Third Party Claim (to the extent that such information is actually known by the Buyer);
10.20.2 subject to the Seller entering into a confidentiality undertaking in a form satisfactory to the Buyer, keep the Seller fully informed of the progress of, and all costsmaterial developments in relation to, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Third Party Claim and provide the Seller with copies of all information and correspondence relating to such Third Party Claim; and
10.20.3 subject to the Seller entering into a confidentiality undertaking in a form satisfactory to the Buyer, give (and procure that each member of the Buyer’s Group shall give) the Seller and its professional advisers access at reasonable times (and on reasonable notice) to its premises, and to any relevant information within its control, for the purposes of enabling the Seller and its advisers to assess the Third Party Claim, and enabling the Seller to exercise its rights under this clause 10.20 and clause 10.22.
10.21 Any failure or delay by the Buyer to give written notice within 20 Business Days in accordance with clause 10.20.1, shall not invalidate or otherwise prejudice any Claim by the Buyer save to the extent that any such Claim arises or is increased as a result of such failure or delay.
10.22 Subject to the Seller indemnifying the Buyer in accordance with clause 10.23, the Buyer shall:
10.22.1 take (and shall procure that ATM each member of the Buyer’s Group shall bear all third partytake) such action as the Seller may reasonably request in writing to avoid, public dispute, resist, mitigate, compromise or defend the Third Party Claim and to appeal against any judgement given in respect of it;
10.22.2 not (and shall procure that no other member of the Buyer’s Group shall) agree any compromise or settlement, or make any admission of liability and employer’s liability risks attached or payment in relation to a Third Party Claim without the prior written consent of the Seller (such consent not to be unreasonably withheld or delayed); and
10.22.3 if required by the Seller in writing, delegate the conduct of any legal proceedings in respect of the Third Party Claim to the occupation and use Seller (Proceedings). For this purpose, the Buyer shall retain such firm of solicitors as is selected by the Seller to proceed on behalf of the Property Leases and shall indemnify Buyer, the Company against them
7.4 Forthwith upon or the grant relevant Subsidiary (as the case may be) in relation to the Proceedings in accordance with the instructions of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed Seller, and the Buyer shall procure that give such information and assistance as the Company shall assign Seller or transfer as appropriate the Property Leases to ATM appointed solicitors may require in connection with full title guaranteethe conduct of the Proceedings.
7.5 10.23 The Seller agrees to shall indemnify the Buyer against in respect of all claimscosts, costs charges and liabilities indirectly expenses that are properly incurred by the Buyer (or directly incurred any other member of the Buyer’s Group) as a consequence of any actions taken at the request of the Seller in accordance with clause 10.20 and 10.22 and the Seller shall pay to the Buyer (or any other member of the Buyer’s Group) on demand such costs, charges and expenses.
10.24 The Buyer shall be entitled to withdraw any conduct granted to the Seller pursuant to clause 10.20 and 10.22 where the Buyer (acting reasonably) considers that in having such conduct, the Seller is failing to act diligently in respect of the Property Leases and Claim or is acting in a manner which is frivolous or vexatious or which the Buyer reasonably believes is likely to injure the business or reputation of any member the Buyer’s Group.
10.25 The Seller shall have no liability in respect of a Claim to the transfer of extent that the Employees or any of the Excluded Assets liability pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify relevant Claim is increased as a result of the Buyer against all claims(or any member of the Buyer’s Group) knowingly failing to act in accordance with any reasonable request or direction given by the Seller in writing in accordance with clause 10.22, costs and liabilities indirectly save where the Buyer reasonably believes that such request or directly incurred as tax penalties direction is likely to injure the business or charges for late returns as specifically Disclosed in reputation of any member of the Disclosure LetterBuyer’s Group.
Appears in 2 contracts
Sources: Share Purchase Agreement (Griffin-American Healthcare REIT II, Inc.), Share Purchase Agreement (Griffin-American Healthcare REIT II, Inc.)
Limitations on Claims. 6.1 The definitions and rules of interpretation 8.1 Notwithstanding anything to the contrary in this Agreement, nothing in this clause apply 8 or elsewhere in this Agreement “Claim” a claim or any other Transaction Document shall limit the liability of Warrantor for breach any Claim arising out of the fraud or fraudulent misrepresentation of the Company, the Warrantor or any of their respective officers, directors or Affiliates.
8.2 The maximum aggregate liability of the Warranties “Substantiated Claim” a Claim Warrantor in respect of which all General Warranties Claims shall not in any circumstance exceed an amount equal to US$3,000,000.
8.3 The maximum aggregate liability is admitted by of the party against whom such Warrantor in respect of all General Warranties Claims, Specified Warranties Claims and Tax Claims shall not in any circumstance exceed an amount equal to US$6,666,667.
8.4 Subject to clauses 8.2 and 8.3, and except as provided in clause 8.1, the maximum aggregate liability of the Warrantor and the Company under this Agreement for any reason shall not in any circumstance exceed US$20,000,000.
8.5 The Warrantor shall have no liability in respect of a Claim, other than a Fundamental Claim is broughtor a Tax Claim, or which has been adjudicated on by a Court of competent jurisdiction unless and no right of appeal lies until:
8.5.1 the losses arising in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause limits the liability of the Seller in relation to any Claim
6.3 The liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000
6.4 The Seller shall not be liable for a Claim unless:
6.4.1 the amount of a Substantiated Claim, or of a series of connected Substantiated related Claims of which that Substantiated Claim is onearising from substantially similar facts, matters or circumstances exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not excluded under clause 6.4.1 when taken together, exceeds £10,000US$90,000, in which case the Investor shall be entitled to claim the whole of such sum and not merely the excess; and
8.5.2 the losses arising in respect of all Claims (excluding any Claim for which liability is excluded by clause 8.5.1) exceeds US$900,000, in which case the Investor shall be entitled to claim the whole amount of all such Claims and not merely the excess.
8.6 Subject to clauses 8.7 to 8.9 (inclusive):
8.6.1 the Warrantor shall cease to have any liability for any General Warranties Claim, unless notice is given in accordance with clause 8.9 no later than the first Business Day following the one (1)-year anniversary of the Relevant Date;
8.6.2 the Warrantor shall cease to have any liability for any Specified Warranties Claim unless notice is given in accordance with clause 8.9 no later than the first Business Day following the date falling thirty (30) months following the Relevant Date; and
8.6.3 the Warrantor shall cease to have any liability for any Fundamental Claim or Tax Claim unless notice is given in accordance with clause 8.9 no later than the first Business Day following the five (5)-year anniversary of the Relevant Date
8.7 The liability of the Warrantor in respect of any Claim shall terminate absolutely (and no new Claim may be made in respect of the same facts) if proceedings in respect of it shall not just have been commenced by being both issued and served on the relevant parties within the period of nine (9) months from the date on which the Investor gives notice of such Claim to the Warrantor in accordance with clause 8.9.
8.8 The Warrantor shall not be liable in respect of any Claim based upon a liability which is contingent unless and until such contingent liability becomes an actual liability; provided that this clause 8.8 shall not operate to avoid a Claim made in respect of a contingent liability within the applicable time limit specified in clause 8.6 if it becomes an actual liability on or before the relevant date specified in clause 8.6.
8.9 Any notice of a Claim shall specify in reasonable detail (to the extent then available to the Investor) the nature of the potential liability and, so far as is practicable, the Investor’s best estimate of the amount likely to be claimed in respect of it (based on the information then available to the Investor), provided that any failure so to specify such detail or estimate shall not preclude the Investor from bringing a Claim.
8.10 No liability of the Warrantor in respect of any Claim shall arise:
8.10.1 to the extent that such breach occurs by reason of any matter which would not have arisen but for the coming into force of any legislation not in force at the Completion Date or any change in the interpretation of existing legislation on the basis of case law or by reason of any change to Taxation rates or practice occurring after the Completion Date;
8.10.2 to the extent that such breach or Claim arises as a result of any change in the (Tax) accounting bases or policies in accordance with which the limit Company values its assets or calculates its liabilities or any other change in this clause 6.4.2 (Tax) accounting practice from the treatment or application of the same, in each case to the extent such change is exceeded) is recoverable required by applicable law or regulation (save to the Buyerextent that such changes are required to correct errors or because relevant generally accepted accounting principles have not been complied with); or
6.5 8.10.3 the breach or Claim or the events giving rise to the breach or Claim were carried out at the written request of the Investor.
8.11 The Seller is Warrantor shall not be liable for any Claim to the extent that the alleged breach which is the subject of such Claim is capable of remedy and is remedied to the reasonable satisfaction of the Investor by the Company or the Warrantor within forty-five (45) days of the date on which the notice in clause 8.9 is received by the Warrantor without cost or loss to the Investor.
8.12 Nothing in this Agreement shall limit or reduce the Investor’s duty under English law to mitigate any loss or liability which arises in connection with any Claim:.
6.5.1 relates to matters Disclosed8.13 The Warrantor shall not be liable for any Claim in respect of indirect or consequential losses; or
6.5.2 relates to any matter specifically and fully provided for provided, that, a diminution in the Accounts
6.6 The Seller is not liable for a Claim unless the Buyer has given the Seller notice in writing value of the Claim, summarising Preferred Shares arising (i) directly from any Claim and/or (ii) from a loss which may fairly and reasonably be supposed to have been in the nature contemplation of the Warrantor and the Investor (at the time this Agreement was entered into) as a probable result of the relevant breach shall each not be deemed to be an indirect or consequential loss.
8.14 The Warrantor shall have no liability in respect of any Claim as far as it is known if and to the Buyer and extent that (a) allowance, provision or reserve was fairly disclosed or expressly made in the amount claimed Accounts (including by way of a note or a statement in any report forming part of the Accounts) in respect of the matter giving rise to the Claim or (b) the loss giving rise to the Claim is within recovered by the period Investor (or a Group Company) under any policy of 6 months beginning with insurance.
8.15 The Investor shall not be entitled to recover more than once in respect of any Claim or loss.
8.16 Until the date that is sixty (60) days following the Completion Date
6.7 Nothing , the Investor shall use commercially reasonable endeavours to facilitate the Warrantor obtaining, as soon as reasonably practicable, a “sell-side” warranty insurance policy in relation to the Warranties on customary terms for transactions of this type (the “Policy”); provided, however, and notwithstanding anything to the contrary in this Agreement, the Investor shall not: (a) be required to make available to any person any information, documents or materials in the Investor’s control or possession; or (b) incur any liability hereunder, regardless of whether the Policy is issued, for any reason or no reason, so long as the Investor complies with the first sentence of this clause 8.16. Except as otherwise provided in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases8.16, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company Investor and the Company shall hold provide such co-operation as is reasonably requested by the Property Leases upon trust Warrantor in connection with obtaining the Policy. The Warrantor shall be responsible for paying the premium for the ATM
7.3.2 Policy but shall not be responsible for paying any costs or fees incurred by the Seller will procure that ATM will pay for and reimburse Investor in connection with obtaining the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay Policy. Notwithstanding anything to the Company amounts equal contrary in this Agreement or in the Policy (if issued), as applicable, (i) if the Policy is issued, the Warrantor shall continue to be liable for any Claim that is not timely covered by the Policy, for any reason or no reason, subject only to the rents reserved by the Property Leases as terms and when the rents fall due pursuant conditions of this Agreement, in each such case to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant same extent as it would be liable if this clause 8.16 was not contained in this Agreement and the Property Leases are fully observed Policy was issued, and performed and shall indemnify (ii) if the Company against Policy is not issued, for any breachreason or no reason, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment this clause 8.16 shall be completed disregarded for all purposes hereunder and the Buyer remaining provisions of this clause 8 shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM remain in full force and effect in accordance with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Lettertheir respective terms.
Appears in 1 contract
Sources: Preferred Shares Subscription Agreement (Icts International N V)
Limitations on Claims. 6.1 The definitions
9.1 Save as provided under clauses 9.14 and rules of interpretation in 9.15, this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause 9 limits the liability of the Seller Sellers and the Warrantors in relation to any Claim, Indemnity Claim and (where specifically provided) any claim under the Tax Covenant.
6.3 9.2 The aggregate liability of a Seller (other than the Seller Warrantors) for all Substantiated Claims when taken together under this agreement shall not exceed £350,000an amount equal to the Purchase Price received by that Seller.
6.4 9.3 The Seller aggregate liability of each Warrantor for:
9.3.1 Claims under the Warranties, any Indemnity Claim and the Tax Covenant, shall not exceed an amount equal to 20% of the Purchase Price received by that Warrantor and in relation to each Claim 50% of the value of such claim; and
9.3.2 Claims under the Fundamental Warranties, shall not exceed an amount equal to the Purchase Price received by that Warrantor.
9.4 In respect of any Claims under the Fundamental Warranties and/or an Indemnity Claim, the Seller(s) may, in their sole discretion, elect to satisfy such a Claim or Indemnity Claim, or any part of it, by the transfer of such number of Consideration Shares held by that Seller to the Buyer (to be cancelled or held in treasury) having a Value equal to the amount of the Claim or Indemnity Claim to be settled by the transfer of Consideration Shares (or all of the Consideration Shares held by the applicable Seller if the excess amount is greater than the Value of all Consideration Shares held by such Seller). For such purposes, the Value of the relevant Consideration Shares shall be calculated as at the date the relevant Seller(s) notifies the Buyer that it elects, in accordance with this Clause 9.4, that the Claim or Indemnity Claim be satisfied or partially satisfied by the transfer of Consideration Shares to the Buyer (the Election Date). The Sellers agree to exercise their rights in the Buyer (whether as a Shareholder or a director or both) to procure (so far as it/she/he is able) that full effect is given to the provisions of this Clause 9.4. As security for the performance of its/his/her obligations under this Clause 9.4, the Sellers irrevocably appoint the Buyer as its/his/her attorney by way of security to execute any document required to be executed (or action to be taken) under this Clause 9.4 on its/his/her behalf, including documents of transfer for the relevant Consideration Shares.
9.5 In respect of any Claims under the Business and Tax Warranties, claim under the Tax Covenant and/or an Indemnity Claim, the Warrantors may, in their sole discretion, elect to satisfy such a Claim, claim under the Tax Covenant or Indemnity Claim, or any part of it, by the transfer of such number of Consideration Shares held by him/it to the Buyer (to be cancelled or held in treasury) having a Value equal to the amount of the Claim or Indemnity Claim to be settled by DocuSign Envelope ID: 7A64C679-377F-458A-B7C0-50276FFA55AB the transfer of Consideration Shares (or all of the Consideration Shares held by a Warrantor if the excess amount is greater than the Value of all Consideration Shares held by that Warrantor). For such purposes, the Value of the relevant Consideration Shares shall be calculated as at the date a Warrantor notifies the Buyer that it elects, in accordance with this Clause 9.5, that the Claim, claim under the Tax Covenant or Indemnity Claim be satisfied or partially satisfied by the transfer of Consideration Shares to the Buyer (the Election Date). The Warrantors agree to exercise their rights in the Company (whether as a Shareholder or a director or both) to procure (so far as they are able) that full effect is given to the provisions of this Clause 9.5. As security for the performance of their obligations under this Clause 9.5, the Warrantors irrevocably appoint the Buyer as their attorney by way of security to execute any document required to be executed (or action to be taken) under this Clause 9.5 on their behalf, including documents of transfer for the relevant Consideration Shares.
9.6 Neither the Sellers nor the Warrantors shall be liable for a Claim or Indemnity Claim unless:
6.4.1 9.6.1 the Warrantors’ and/or Sellers’ liability in respect of such Claim or Indemnity Claim (together with any connected Claims), exceeds an amount equal to GBP £16,000; and
9.6.2 the amount of a Substantiated the Warrantors’ and/or Sellers’ liability in respect of such Claim or Indemnity Claim, either individually or of a series of connected Substantiated Claims of which that Substantiated Claim is onewhen aggregated with the Warrantors’ and/or Sellers’ liability for all other Claims, exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not (other than those excluded under clause 6.4.1 when taken together, 9.6.1) exceeds GBP £10,000160,000, in which case the Warrantors and/or Sellers shall be liable for the whole amount (of the Claim and/or Indemnity Claim and not just the amount by which above the limit threshold specified in this clause 6.4.2 9.6.2 For the purposes of this clause 9.6, a claim is exceeded) is recoverable by “connected” with another claim if the Buyerclaims arise from the same facts, events or circumstances.
6.5 The Seller is not 9.7 Neither the Sellers nor the Warrantors shall be liable for any a Claim, a claim for a breach of a Fundamental Warranty or a Claim under the Tax Covenant if and to the extent that the Claim, Claim for a breach of a Fundamental Warranty or claim for a Tax Covenant:
6.5.1 relates to matters 9.7.1 arises from facts, events or circumstances that have been Disclosed; or
6.5.2 9.7.2 relates to any a matter specifically and fully provided for disclosed in the Accounts or Management Accounts.
6.6 The Seller is not 9.8 Neither the Sellers nor the Warrantors shall be liable for a Claim, Indemnity Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim, Indemnity Claim, Claim as for a breach of Fundamental Warranty or a claim under the Tax Covenant (in so far as it is known to the Buyer and Buyer) and, as far as is reasonably practicable, the amount claimed is within claimed, has been given by or on behalf of the period Buyer to the Sellers and/or the Warrantors (as applicable):
9.8.1 in the case of a Claim for the Tax Warranties or a claim under the Tax Covenant, on or before the seventh anniversary of Closing; and
9.8.2 in any other case, the later of 15 months commencing on the Closing Date or the publication of the Buyer’s audited figures to 31 December 2021.
9.9 Any Claim of which notice has been given in accordance with clause 9.8 above shall be deemed to have been withdrawn and unenforceable on the expiry of 6 months beginning commencing on the date on which the relevant notice of the Claim, Indemnity Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant was given to the Sellers and/or the Warrantors unless proceedings in respect of the Claim, Indemnity Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant have already been validly issued.
9.10 Neither the Sellers nor the Warrantors shall be liable in respect of any Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant to the extent that such Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant in question or the breach on which such Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant is based: DocuSign Envelope ID: 7A64C679-377F-458A-B7C0-50276FFA55AB
9.10.1 arises as a result of any act or omission which is pursuant to this agreement or Admission or occurs as a consequence of the execution and/or performance of this agreement or Admission, except Warranties that specifically warrant the occurrence or non-occurrence (as the case may be) of specified circumstances as a consequence of the execution and/or performance of this agreement;
9.10.2 arises or increased as a result of any change in the rates of Tax in force at the date of this agreement;
9.10.3 gives rise to a contingent liability which has not become an actual liability in which case, for the purposes of this clause 9.10.3, the time period specified in clause 9.8 shall not start to run in respect of such a Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant until such liability has become an actual liability (and not on any earlier date on which the relevant notice of the Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant was given to the Warrantors and/or the Sellers (as applicable));
9.10.4 the loss giving rise to the Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant occurs or is increased by reason of the passing of, or any change in, after the date of this agreement, any legislation having retrospective effect; or
9.10.5 arises or is increased by a change in an accounting policy or practice of the Company or any member its Group made after Closing (except where such change is made to comply with a requirement of law or accounting practice).
9.11 The aggregate liability of the Completion DateSellers and the Warrantors for any Claim, Indemnity Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant shall be reduced by any sum which is actually recovered (whether by way of insurance, indemnification or otherwise) by the Buyer from any third party in respect of the loss and damage giving rise to the Claim less the amount of any costs and expenses reasonably incurred in obtaining payment of that sum and of any Tax for which the Warrantors and/or Seller(s) (as applicable) may be liable by reason of receipt of such sum.
6.7 9.12 Where the Buyer has previously received a payment in cleared funds from the Warrantors and/or the Sellers in respect of a Claim, Indemnity Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant, and subsequently make actual recovery from a third party as referred to in clause 9.11 above directly in respect of the loss and damage giving rise to that Claim, Indemnity Claim, Claim for a breach of Fundamental Warranty or a claim under the Tax Covenant, the Buyer will within a reasonable period of such recovery, reimburse to the Warrantors the lesser of:
9.12.1 the sum recovered from the third party; or
9.12.2 the amount previously paid by the Warrantors and/or Seller(s) to the Buyer, less in each case the costs, expenses or Tax referred to in clause 9.11 above.
9.13 Nothing in this clause 6 9 shall derogate from the common law duties of the Buyer to take reasonable steps to mitigate any losses it suffers as a result of a breach by the Warrantors or the Sellers of any provisions of this agreement (which may be applicable to them), including the Warranties. The Buyer shall not be entitled to recover from the Sellers and/or the Warrantors more than once in respect of the same loss, but this clause shall not prevent any subsequent claim where the amount payable to the Buyer is increased as a result of facts of which the Buyer was not actually aware when making the earlier claim.
9.14 Nothing in this clause 9 or Schedule 9 applies to exclude or limit the liability of the Sellers if and to the extent that a Claim that for a breach of Fundamental Warranty in respect of such Seller’s own holding of Sale Shares and in respect of it/him/herself only arises or is delayed as a result of dishonestyfraud, wilful misconduct or wilful concealment by such Seller. DocuSign Envelope ID: 7A64C679-377F-458A-B7C0-50276FFA55AB
9.15 Nothing in this clause 9 or Schedule 9 applies to exclude or limit the liability of the Warrantors if and to the extent that a Claim in respect of the Business and Tax Warranties or a claim under the Tax Covenant arises or is delayed as a result of fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIESWarrantors.
7.1 9.16 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of Warrantors will not be liable for any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred Claim in respect of the Property Leases Business and Tax Warranties or a claim under the Tax Covenant if the alleged breach which is the subject of the Claim in respect of the transfer Business and Tax Warranties or the claim under the Tax Covenant is capable of remedy and such breach is remedied by the Warrantors to the reasonable satisfaction of the Employees Buyer within 90 days of the date on which the notice required by clause 9.8 is given.
9.17 The Warrantors shall not plead the Limitation Act 1980 (UK) or any equivalent legislation in any other relevant jurisdiction in respect of any claims made under the Excluded Assets pursuant to Tax Warranties or the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure LetterTax Covenant.
Appears in 1 contract
Sources: Share Purchase Agreement
Limitations on Claims. 6.1 The definitions and rules 10.1 Save as provided in clause 10.6, the provisions of interpretation in this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate 10 shall operate to the same subject matter
6.2 This clause limits limit the liability of the Seller in relation to any Claim.
6.3 The 10.2 Subject to clause 10.6, the aggregate liability of the Seller for all Substantiated Claims when taken together shall:
10.2.1 be the aggregate amount of all Claims less £25,000; but
10.2.2 shall not exceed £350,000400,000.
6.4 10.3 The Seller shall not be liable for a Claim unless:
6.4.1 unless the amount Seller’s liability in respect of a Substantiated Claim, or of a series of connected Substantiated Claims of which that Substantiated any such Claim is one, exceeds £1,000; and
6.4.2 25,000 and in such event the amount of all Substantiated Claims that are not excluded under clause 6.4.1 when taken together, exceeds £10,000, in which case Seller shall be liable for the whole amount (and not just of the amount by which Claim subject to the limit in this provisions of clause 6.4.2 is exceeded) is recoverable by the Buyer11.2.
6.5 10.4 The Seller is shall not liable for any Claim to the extent that the Claim:
6.5.1 relates to matters Disclosed; or
6.5.2 relates to any matter specifically and fully provided for in the Accounts
6.6 The Seller is not be liable for a Claim unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as (in so far as it is known to the Buyer and Buyer) and, as far as is reasonably practicable, the amount claimed is within claimed, has been given by or on behalf of the Buyer to the Seller:
10.4.1 in the case of a claim made under the Tax Warranties, on or before the fourth anniversary of Completion; or
10.4.2 in any other case, prior to the expiry of the period of 6 18 months beginning with commencing on the Completion Date.
6.7 10.5 The Seller shall not be liable for a Claim to the extent that the Claim relates to matters Disclosed.
10.6 Nothing in this clause 6 10 applies to exclude or limit the liability of the Seller:
10.6.1 to the extent that a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIESadvisers; or
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company 10.6.2 in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings a breach of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations Fundamental Warranty (other than for clause 10.4.1 which will apply to a claim under the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure LetterTax Warranties).
Appears in 1 contract
Limitations on Claims. 6.1 The definitions and rules of interpretation 8.1 Notwithstanding anything to the contrary in this Agreement, nothing in this clause apply 8 or elsewhere in this Agreement “Claim” a claim or any other Transaction Document shall limit the liability of Warrantor for breach any Claim arising out of the fraud or fraudulent misrepresentation of the Company, the Warrantor or any of their respective officers, directors or Affiliates.
8.2 The maximum aggregate liability of the Warranties “Substantiated Claim” a Claim Warrantor in respect of which all General Warranties Claims shall not in any circumstance exceed an amount equal to US$9,000,000.
8.3 The maximum aggregate liability is admitted by of the party against whom such Warrantor in respect of all General Warranties Claims, Specified Warranties Claims and Tax Claims shall not in any circumstance exceed an amount equal to US$20,000,000.
8.4 Subject to clauses 8.2 and 8.3, and except as provided in clause 8.1, the maximum aggregate liability of the Warrantor and the Company under this Agreement for any reason shall not in any circumstance exceed US$60,000,000.
8.5 The Warrantor shall have no liability in respect of a Claim, other than a Fundamental Claim is broughtor a Tax Claim, or which has been adjudicated on by a Court of competent jurisdiction unless and no right of appeal lies until:
8.5.1 the losses arising in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause limits the liability of the Seller in relation to any Claim
6.3 The liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000
6.4 The Seller shall not be liable for a Claim unless:
6.4.1 the amount of a Substantiated Claim, or of a series of connected Substantiated related Claims of which that Substantiated Claim is onearising from substantially similar facts, matters or circumstances exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not excluded under clause 6.4.1 when taken together, exceeds £10,000US$90,000, in which case the Investor shall be entitled to claim the whole of such sum and not merely the excess; and
8.5.2 the losses arising in respect of all Claims (excluding any Claim for which liability is excluded by clause 8.5.1) exceeds US$900,000, in which case the Investor shall be entitled to claim the whole amount of all such Claims and not merely the excess.
8.6 Subject to clauses 8.7 and 8.8:
8.6.1 the Warrantor shall cease to have any liability for any General Warranties Claim, unless notice is given in accordance with clause 8.8 no later than the first Business Day following the one (1)-year anniversary of the Completion Date;
8.6.2 the Warrantor shall cease to have any liability for any Specified Warranties Claim unless notice is given in accordance with clause 8.8 no later than the first Business Day following the date falling thirty (30) months following the Completion Date; and
8.6.3 the Warrantor shall cease to have any liability for any Fundamental Claim or Tax Claim unless notice is given in accordance with clause 8.9 no later than the first Business Day following the five (5)-year anniversary of the Completion Date. The liability of the Warrantor in respect of any Claim shall terminate absolutely (and no new Claim may be made in respect of the same facts) if proceedings in respect of it shall not just have been commenced by being both issued and served on the relevant parties within the period of nine (9) months from the date on which the Investor gives notice of such Claim to the Warrantor in accordance with clause 8.8.
8.7 The Warrantor shall not be liable in respect of any Claim based upon a liability which is contingent unless and until such contingent liability becomes an actual liability; provided that this clause 8.7 shall not operate to avoid a Claim made in respect of a contingent liability within the applicable time limit specified in clause 8.6 if it becomes an actual liability on or before the relevant date specified in clause 8.6.
8.8 Any notice of a Claim shall specify in reasonable detail (to the extent then available to the Investor) the nature of the potential liability and, so far as is practicable, the Investor’s best estimate of the amount likely to be claimed in respect of it (based on the information then available to the Investor), provided that any failure so to specify such detail or estimate shall not preclude the Investor from bringing a Claim.
8.9 No liability of the Warrantor in respect of any Claim shall arise:
8.9.1 to the extent that such breach occurs by reason of any matter which would not have arisen but for the coming into force of any legislation not in force at the Completion Date or any change in the interpretation of existing legislation on the basis of case law or by reason of any change to Taxation rates or practice occurring after the Completion Date;
8.9.2 to the extent that such breach or Claim arises as a result of any change in the (Tax) accounting bases or policies in accordance with which the limit Company values its assets or calculates its liabilities or any other change in this clause 6.4.2 (Tax) accounting practice from the treatment or application of the same, in each case to the extent such change is exceeded) is recoverable required by applicable law or regulation (save to the Buyerextent that such changes are required to correct errors or because relevant generally accepted accounting principles have not been complied with); or
6.5 8.9.3 the breach or Claim or the events giving rise to the breach or Claim were carried out at the written request of the Investor.
8.10 The Seller is Warrantor shall not be liable for any Claim to the extent that the alleged breach which is the subject of such Claim is capable of remedy and is remedied to the reasonable satisfaction of the Investor by the Company or the Warrantor within forty-five (45) days of the date on which the notice in clause 8.8 is received by the Warrantor without cost or loss to the Investor.
8.11 Nothing in this Agreement shall limit or reduce the Investor’s duty under English law to mitigate any loss or liability which arises in connection with any Claim:.
6.5.1 relates to matters Disclosed8.12 The Warrantor shall not be liable for any Claim in respect of indirect or consequential losses; or
6.5.2 relates to any matter specifically and fully provided for provided, that, a diminution in the Accounts
6.6 The Seller is not liable for a Claim unless the Buyer has given the Seller notice in writing value of the Claim, summarising Shares held by the nature Investor arising (i) directly from any Claim and/or (ii) from a loss which may fairly and reasonably be supposed to have been in the contemplation of the Warrantor and the Investor (at the time this Agreement was entered into) as a probable result of the relevant breach shall each not be deemed to be an indirect or consequential loss.
8.13 The Warrantor shall have no liability in respect of any Claim as far as it is known if and to the Buyer and extent that (a) allowance, provision or reserve was fairly disclosed or expressly made in the amount claimed Accounts (including by way of a note or a statement in any report forming part of the Accounts) in respect of the matter giving rise to the Claim or (b) the loss giving rise to the Claim is within recovered by the period Investor (or a Group Company) under any policy of 6 months beginning with insurance.
8.14 The Investor shall not be entitled to recover more than once in respect of any Claim or loss.
8.15 Until the date that is sixty (60) days following the Completion Date
6.7 Nothing , the Investor shall use commercially reasonable endeavours to facilitate the Warrantor obtaining, as soon as reasonably practicable, a “sell-side” warranty insurance policy in relation to the Warranties on customary terms for transactions of this type (the “Policy”); provided, however, and notwithstanding anything to the contrary in this Agreement, the Investor shall not: (a) be required to make available to any person the Investor Due Diligence Reports or any other information, documents or materials in the Investor’s control or possession; or (b) incur any liability hereunder, regardless of whether the Policy is issued, for any reason or no reason, so long as the Investor complies with the first sentence of this clause 8.15. Except as otherwise provided in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases8.15, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company Investor and the Company shall hold provide such co-operation as is reasonably requested by the Property Leases upon trust Warrantor in connection with obtaining the Policy. The Warrantor shall be responsible for paying the premium for the ATM
7.3.2 Policy but shall not be responsible for paying any costs or fees incurred by the Seller will procure that ATM will pay for and reimburse Investor in connection with obtaining the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay Policy. Notwithstanding anything to the Company amounts equal contrary in this Agreement or in the Policy (if issued), as applicable, (i) if the Policy is issued, the Warrantor shall continue to be liable for any Claim that is not timely covered by the Policy, for any reason or no reason, subject only to the rents reserved by the Property Leases as terms and when the rents fall due pursuant conditions of this Agreement, in each such case to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant same extent as it would be liable if this clause 8.15 was not contained in this Agreement and the Property Leases are fully observed Policy was issued, and performed and shall indemnify (ii) if the Company against Policy is not issued, for any breachreason or no reason, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment this clause 8.15 shall be completed disregarded for all purposes hereunder and the Buyer remaining provisions of this clause 8 shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM remain in full force and effect in accordance with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Lettertheir respective terms.
Appears in 1 contract
Sources: Series a Preferred Shares Subscription Agreement (Icts International N V)
Limitations on Claims. 6.1 8.1 This clause 8 limits the liability of each of the Sellers in relation to any Relevant Claim.
8.2 The definitions maximum aggregate liability of the Sellers in relation to all Relevant Claims (inclusive of all claims, costs, expenses, reasonably incurred legal and rules professional fees and disbursements, VAT, interest and penalties) shall not exceed the sum of interpretation [**] pounds sterling (£[**]) (the Cap) and each Seller's individual maximum aggregate liability in respect of any such Relevant Claims shall be limited in accordance with the provisions of clause 7.10.
8.3 A Seller shall not be liable:
8.3.1 in respect of a Relevant Claim (excluding a Tax Protection Claim) unless the amount of each such Substantiated Claim (together with any such connected Substantiated Claims) exceeds the sum of £[**] in which case in which case the liability of the relevant Sellers shall be for the total amount of such Substantiated Claims (and not limited to the amount above the threshold specified in this clause apply 8.3.1); and
8.3.2 in respect of a Relevant Claim unless the aggregate amount of all such Substantiated Claims either individually or when aggregated with all other Relevant Claims (other than those excluded under clause 8.3.1), exceeds the sum of £[**], in which case the liability of the relevant Sellers shall be for the total amount of such Substantiated Claims (and not limited to the amount above the threshold specified in this Agreement “clause 8.3.2). For the purposes of this clause 8.3: a Relevant Claim is connected with another Relevant Claim if such claims arise from the same facts, events or circumstances; and
8.4 Each Seller shall not be liable in respect of a Relevant Claim unless notice in writing summarising the nature of the Relevant Claim (in so far as it is known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to each of the Sellers' Representatives as soon as practicable following the Buyer becoming aware that such circumstances entitles it to bring a Relevant Claim” , but in any event:
8.4.1 in the case of a claim for breach of any in respect of the Warranties “Substantiated Claim” a Tax Warranties, on or before the date falling on the [**] anniversary of the Completion Date; or
8.4.2 in any other case, on or before the expiry of [**] months from the Completion Date.
8.5 Any Relevant Claim in respect of which liability is admitted notice has been given by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies Buyer pursuant to clause 8.4 above shall lapse entirely if proceedings are not issued in respect of such adjudicationclaim within 12 months of service of the notice pursuant to clause 8.4 above, or in the parties are debarred by passage case of time or otherwise from making an appeal A a Relevant Claim is connected with another Claim or Substantiated Claim if they all arise out to which clause 8.7.4 applies, within eighteen months of the occurrence date stated in clause 8.4.2 above, during which time the Buyer shall be at liberty to negotiate with the relevant party to crystallize the contingent liability into an actual liability which shall thereupon form the basis of the same event or relate to the same subject matterRelevant Claim.
6.2 This clause limits the liability of the Seller in relation to any Claim
6.3 8.6 The liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000
6.4 The Seller Sellers shall not be liable for a Claim unless:
6.4.1 the amount of a Substantiated Claim, or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not excluded under clause 6.4.1 when taken together, exceeds £10,000, in which case the whole amount (and not just the amount by which the limit in this clause 6.4.2 is exceeded) is recoverable by the Buyer
6.5 The Seller is not liable for any Relevant Claim to the extent that the Relevant Claim:
6.5.1 8.6.1 arises from facts, events or circumstances that have been Disclosed;
8.6.2 relates to matters Disclosed; or
6.5.2 relates to any a matter specifically and fully provided for in the Accounts;
6.6 The Seller 8.6.3 arises from any voluntary act carried out by the Buyer or any person connected with the Buyer after Completion which is not liable in the ordinary course of business or pursuant to a legally binding obligation entered into or which arose prior to Completion which is required by law;
8.6.4 arises from any change in any law, rule, regulation, interpretation of the law or administrative practice of any government, governmental department, agency or regulatory body (whether or not having the force of law) or any increase in the rates, methods of calculation or scope of Taxation or any imposition of Taxation after the date of this agreement;
8.6.5 arises from any change of accounting policy or practice of the Company after Completion;
8.6.6 would not have arisen but for any claim, election, surrender or disclaimer made or omitted to be made or notice or consent given or omitted to be given by the Buyer’s Group under any Tax Statute the making or giving of which was taken into account in computing the provision for Tax (including the provision for deferred taxation) in the Accounts the Management Accounts or the Purchase Price Statement; or
8.6.7 arises from any winding-up or cessation after Completion of any business or trade carried on by the Company (other than where such occurs as a consequence of a breach of this agreement by the Sellers).
8.7 The liability of each relevant Seller for any Relevant Claim unless shall be reduced to the extent that:
8.7.1 there has been a corresponding saving of or credit in relation to Tax by the Buyer has given the Seller notice in writing or any member of the Claim, summarising the nature Buyer's Group in respect of the Claim loss or liability giving rise to such claim;
8.7.2 the loss or damage is recovered by the Buyer, a member of the Buyer's Group or the Company under any policy of insurance, provided that in the event that the insurance premium payable upon the renewal of the relevant insurance policy increases at the policy renewal date immediately following the date of such claim as far as it is known compared to the Buyer prior premium amount paid for such policy and such increase is directly attributable to the fact of such insurance claim having been made, then any such excess over and above the prior premium amount claimed paid for such policy shall be excluded from the protections of this clause 8.7.2;
8.7.3 it represents any liability for Tax arising in the ordinary course of business of the Company since the Accounts Date;
8.7.4 the Relevant Claim is based upon a liability which is contingent only, unless and until such contingent liability becomes an actual liability or until the same is finally adjudicated within the time period provided in clause 8.5 above (and in the event that such liability does not cease to be contingent before the expiration of 6 months beginning with such period it shall lapse);
8.7.5 provision or reserve in respect of the Completion Datematter giving rise to such Relevant Claim shall have been made in the Accounts, the Management Accounts or the Purchase Price Statement (and expressly identified) or to the extent that the matter giving rise to such claim shall have been noted or taken into account in the Accounts, the Management Accounts or the Purchase Price Statement (and expressly identified);
6.7 Nothing 8.7.6 any sum is received by the Company which has previously been written off as irrecoverable in this clause 6 applies to a Claim that arises the Accounts;
8.7.7 the relevant amount has previously been withheld from the Retention or is delayed otherwise recovered from the Sellers (or any of them).
8.8 In assessing any liabilities, damages or other amounts recoverable by the Buyer as a result of dishonesty, fraud, wilful misconduct any Relevant Claim there shall be taken into account any amount of any Tax relief obtained or wilful concealment obtainable by the SellerBuyer’s Group and any amount by which any Tax for which the Buyer’s Group is or may be liable to be assessed or accountable is reduced or extinguished, its agents arising directly or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIESindirectly in consequence of the matter which gives rise to such claim.
7.1 8.9 The Buyer agrees shall not be entitled to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of recover more than once under this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred agreement in respect of the Property Leases same loss or liability.
8.10 If the Sellers pay to the Buyer an amount in respect of any Relevant Claim and the Buyer or any member of the Buyer's Group subsequently recovers from another person an amount in respect of the transfer same loss or liability the Buyer or relevant member of the Employees or any of the Excluded Assets pursuant Buyer's Group (as appropriate) shall as soon as reasonably practicable pay to the ATM Transfer Agreement
7.6 The Seller agrees Sellers an amount equal to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in Sum Recovered. For the Disclosure Letterpurposes of this clause 8:
Appears in 1 contract
Limitations on Claims. 6.1 The definitions and rules of interpretation 7.1 Save as provided in clause 7.6, this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause 7 limits the liability of the Seller in relation to any ClaimClaim and (where specifically provided) any claim under the Tax Covenant.
6.3 7.2 The aggregate liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000an amount equal to the Purchase Price.
6.4 7.3 The Seller shall not be liable for a Claim unless:
6.4.1 (a) the Seller’s liability in respect of such Claim (together with any connected Claims) exceeds £5,000; and
(b) the amount of a Substantiated the Seller’s liability in respect of such Claim, either individually or of a series of connected Substantiated when aggregated with the Seller’s liability for all other Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not (other than those excluded under clause 6.4.1 when taken together, 7.3(a)) exceeds £10,0005,000, in which case the Seller shall be liable for the whole amount (of the Claim and not just the amount by which above the limit threshold specified in this clause 6.4.2 7.3(b). For the purposes of this clause 7.3, a Claim is exceeded) connected with another Claim if the Claims arise from the same facts, events or circumstances.
7.4 The Seller shall not be liable for a Claim unless notice in writing summarising the nature of the Claim (in so far as it is recoverable by known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Seller:
6.5 (a) in the case of a Claim for breach of the Tax Warranties, on or before the seventh anniversary of Completion; or
(b) in any other case, within the period of three years commencing on the Completion Date.
7.5 The Seller is shall not be liable for any a Claim if and to the extent that the Claim:
6.5.1 relates to matters (a) arises from facts, events or circumstances that have been Disclosed; or
6.5.2 (b) relates to any a matter specifically and fully provided for in the Accounts.
6.6 The Seller is not liable for a Claim unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as far as it is known to the Buyer and the amount claimed is within the period of 6 months beginning with the Completion Date
6.7 7.6 Nothing in this clause 6 7 or Schedule 5 applies to exclude or limit the liability of the Seller:
(a) if and to the extent that a Claim that or a claim under the Tax Covenant arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIESadvisers; or
7.1 (b) for any Claim made under the Warranties in paragraph 1 to paragraph 6 of Part 1 of Schedule 4.
7.7 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain not plead the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company Limitation ▇▇▇ ▇▇▇▇ in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual any claims made under the Tax Warranties or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred Tax Covenant in respect of the Property Leases and in respect any claims made within seven years of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Letterdate hereof.
Appears in 1 contract
Sources: Share Purchase Agreement (Future FinTech Group Inc.)
Limitations on Claims. 6.1 The definitions and rules of interpretation in this clause apply in this Agreement “Claim” a claim for breach of In no event shall Seller have any of the Warranties “Substantiated Claim” a Claim obligation to indemnify Buyer in respect of which liability is admitted Indemnified Losses in excess of an amount equal to $1,625,000 plus 25% of the NSR Royalty actually paid by the party against whom such Claim is broughtBuyer to Seller hereunder, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise except for indemnity arising out of the occurrence any material breach of the same event or relate to the same subject matter
6.2 This clause limits the liability Sections 3.1, 3.3, 3.4 and 3.10 of the Seller this Agreement, in relation to any Claim
6.3 The liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000
6.4 The which case Seller shall not be liable required to pay to Buyer as Indemnification hereunder more than the aggregate amounts of Purchase Price paid to Seller in cash, and provided further that Buyer shall have the right to set-off any additional amounts for a Claim unlesswhich indemnification may be properly paid to Buyer hereunder from any payments owing or to become owed to Seller pursuant to the NSR Royalty Deed. Notwithstanding anything in this Agreement to the contrary, Seller shall have no obligations or liabilities under this Agreement:
6.4.1 (a) unless Buyer has given written notice to Seller setting out specific details of the amount Indemnified Losses as soon as reasonably practicable after Buyer becomes aware of a Substantiated Claimthe facts, matters or circumstances on which the claim is based, and in any event by the expiration of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,000; andthe relevant representations and warranties as provided in Section 8.1;
6.4.2 (b) unless and until the amount of all Substantiated Claims Indemnified Losses totals at least Seventy Five Thousand Dollars ($75,000) in the aggregate, provided however, that are materiality limitations shall not excluded under clause 6.4.1 be taken into consideration when taken together, exceeds £10,000, in which case calculating the whole aggregate amount of Indemnified Losses for purposes of this Section 9.2(b);
(and not just the amount by which the limit in this clause 6.4.2 is exceededc) is recoverable by the Buyer
6.5 The Seller is not liable for any Claim to the extent that the Claim:
6.5.1 relates to matters Disclosed; or
6.5.2 relates to any matter specifically and fully provided for in the Accounts
6.6 The Seller is not liable for a Claim unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as far as it is known to the Buyer and the amount claimed is within the period of 6 months beginning with the Completion Date
6.7 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred compensation in respect of the Property Leases and in respect of the transfer of the Employees Indemnified Loss:
(i) is recovered by Buyer or any Affiliate under or out of any insurance or indemnity agreement; or
(ii) would have been recoverable by Buyer or any Affiliate under or out of any insurance or indemnity by reasonable efforts to pursue the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly Indemnified Loss under such insurance or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Letterindemnity;
Appears in 1 contract
Limitations on Claims. 6.1 8.1 The definitions and rules of interpretation in this clause apply in this Agreement “Agreement. Claim” : a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal Warranties. A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or set of circumstances or relate to the same subject matter.
6.2 8.2 This clause limits the liability of the Seller Sellers in relation to any Claim.
6.3 8.3 The liability of each of the Seller Sellers for all Substantiated Relevant Claims when taken together shall not exceed £350,000the amount of the Purchase Price actually received by him.
6.4 8.4 The Seller Sellers shall not be liable for a Claim, other than a Claim in relation to the Fundamental Warranties, unless:
6.4.1 (a) the amount of a Substantiated Claim, or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,00025,000; and
6.4.2 (b) the amount of all Substantiated Claims that are not excluded under clause 6.4.1 8.4(a) when taken together, exceeds £10,000, 250,000 in which case the whole amount (and not just the amount by which the limit in this clause 6.4.2 8.4(b) is exceeded) is recoverable by the Buyer.
6.5 8.5 The Seller Sellers shall not be liable for a Claim, an Indemnity Claim or claim under the Tax Covenant unless the Buyer has given the Sellers notice in writing (in accordance with the provisions of this Agreement) of the Claim or claim under the Tax Covenant, summarising in reasonable detail the matter giving rise to and the nature of the Claim or claim under the Tax Covenant, and, as far as is reasonably practicable, the amount claimed (or an estimate of such amount):
(a) in the case of a claim made under the Tax Warranties or the Tax Covenant within the period of seven years beginning with the Completion Date; and
(b) in the case of an Indemnity Claim as set out at Part C of the Disclosure Letter.
(c) in any other case other than a Claim under the Fundamental Warranties, within the period of two years beginning with the Completion Date.
8.6 Any Claim notified in accordance with clause 8.5 shall (if not previously satisfied, settled or withdrawn):
(a) in the case of a claim made under the Tax Warranties or the Tax Covenant be deemed to have been irrevocably withdrawn 12 months after the end of the period referred to at clause 8.5(a) (and no new Claim or claim under the Tax Covenant may be made in respect of the same facts unless material new information relevant to such facts has come to light) unless on or before that date, legal proceedings have been issued and served on the Sellers in respect of the relevant claim; or
(b) in the case of all other Claims or Indemnity Claims be deemed to have been irrevocably withdrawn 9 months after the date on which notice of the relevant Claim was given (and no new Claim may be made in respect of the same facts unless material new information relevant to such facts has come to light) unless on or before that date, legal proceedings have been issued and served on the Sellers in respect of the relevant claim.
8.7 The Sellers shall have no liability in respect of a Relevant Claim (which for the purposes of this clause 8.7 shall not include a claim under the Tax Covenant) if and to the extent of any specific allowance, provision or reserve (which is clearly identifiable as such) which was made in the Completion Accounts in respect of the matter or circumstances giving rise to the Relevant Claim.
8.8 If, in respect of any matter or circumstance which gives rise to a Claim or Indemnity Claim, the Company, the US Subsidiary or any other member of the Buyer’s Group (the “Insured Party”) is entitled to claim under any policy of insurance, then the relevant Insured Party shall (provided it is not materially prejudicial to the Buyer’s commercial interests to do so) make a claim against its insurers in respect of the relevant matter or circumstance, and use reasonable endeavours to pursue such claim. The Sellers’ liability in respect of any related Claim or Indemnity Claim shall then be reduced by any amount actually recovered under such policy of insurance (less all reasonable costs, charges and expenses incurred by the Insured Party in recovering that sum), or extinguished if the amount so recovered exceeds the amount of the Claim.
8.9 If the Buyer, the Company, the US Subsidiary or any other member of the Buyer’s Group (the “Entitled Claimant”) is at any time entitled to recover or otherwise claim reimbursement from a third party in respect of any matter or circumstance giving rise to a Claim or Indemnity Claim:
(a) the Buyer shall (or shall procure that any the Entitled Claimant shall) use reasonable endeavours to enforce such recovery or seek such reimbursement from the relevant third party provided always that it is not materially prejudicial to the Buyer’s (or relevant Entitled Claimant’s) commercial interests to do so; and
(b) the Sellers’ liability in respect of any subsequent related Claim or Indemnity Claim shall be reduced by the amount (if any) recovered by the Entitled Claimant from the relevant third party (less all reasonable costs, charges and expenses incurred by the Entitled Claimant in recovering that sum), or extinguished if the amount actually recovered exceeds the amount of the relevant Claim or Indemnity Claim.
8.10 If the Sellers make a payment to the Buyer in respect of a Claim or Indemnity Claim and the Company, the US Subsidiary or any other member of the Buyer’s Group subsequently recovers from a third party or insurer (pursuant to clause 7.9 or 7.10 above) a sum which is referable to that Claim or Indemnity Claim, the Buyer shall promptly repay to the Seller the lower of:
(a) the amount recovered from such third party (less all reasonable costs, charges and expenses incurred by the Buyer, the Company, the US Subsidiary or other member of the Buyer’s Group in recovering that sum); and
(b) the amount paid to the Buyer by the Sellers in respect of the relevant Claim.
8.11 This clause 8.11 applies in the event that any claim, action or demand is made by any third party against the Company, the US Subsidiary or any other member of the Buyer’s Group which would reasonably be expected to give rise to a Claim or Indemnity Claim (a “Third Party Claim”).
(a) In the event of a Third Party Claim, the Buyer shall (provided that it is not precluded from doing so by Law or any duty of confidentiality):
(i) as soon as reasonably practicable after the Buyer (or any other member of the Buyer’s Group) becomes aware of the Third Party Claim give written notice of the Third Party Claim to the Sellers, specifying in reasonable detail the matter giving rise to, and the nature of, the relevant claim;
(ii) keep the Sellers informed of any significant developments in relation to, the Third Party Claim, including providing copies of material information and correspondence relating to the Third Party Claim; and
(iii) make no legally binding admission of liability, agreement, compromise, settlement or payment in relation to the Third Party Claim (and shall procure that no other member of the Buyer’s Group shall do so) without first consulting with, and taking reasonable account of the view of the Sellers.
8.12 The Sellers shall not be liable for any in respect of a Claim to the extent that the event, matter or circumstance giving rise to such Claim is attributable to, or the Sellers’ liability pursuant to such Claim is increased (in which case the limit on liability contemplated under this clause 8.12 shall apply only to the increased amount of such liability) as a result of:
(a) any voluntary act or deliberate omission carried out by the Buyer, or by the Company or the US Subsidiary on or after Completion at the direction of the Buyer, but excluding such acts or omissions carried out or effected in the ordinary course of business and/or pursuant to a legally binding obligation entered into on or before the date of this Agreement;
(b) any voluntary act or deliberate omission carried out by the Company or the US Subsidiary at the request, or with the specific written consent, of the Buyer before Completion; or
(c) any material change after Completion in the accounting standards, policies, practices or methods applied in preparing the annual accounts, or valuing any assets or liabilities of the Company or its Group for the purpose of preparing the annual accounts compared to those used prior to Completion except for changes required because of a change in law or generally accepted accounting principles.
8.13 The Buyer shall not be entitled to make a Claim if and to the extent that the facts, matters, events or circumstances giving rise to the Claim:
6.5.1 relates to matters (a) are Disclosed; or
6.5.2 relates to any matter specifically and fully provided for in (b) were within the Accounts
6.6 The Seller is not liable for a Claim unless actual knowledge of the Buyer has given (and for the Seller notice in writing purposes of this clause the Buyer shall be deemed to have the actual knowledge of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇), on or before Completion, whether as a result of the Buyer’s due diligence investigations or otherwise and the Buyer actually knows (without having reviewed the Warranties for such purposes) that such facts, matters, events or circumstances, and the detrimental effect, loss or negative consequence resulting from such facts, matters, events or circumstances which gives rise to the Claim, summarising have already arisen as at the nature date hereof.
8.14 The Sellers shall not be liable in respect of a Claim to the extent that the Claim is attributable to, or the value of the Claim as far as it is known increased (in which case the limit on liability contemplated under this clause 8.14 shall apply only to the increased amount of such liability) by a change in any law, legislation, rule or regulation that comes into force with retrospective effect after the date of this Agreement, which, in each case, was not publicised prior to the date of this Agreement.
8.15 The Buyer shall not be entitled to recover damages, or obtain payment, reimbursement, restitution or indemnity more than once in respect of the same loss, shortfall, damage, deficiency, breach or other event or circumstance.
8.16 The Buyer agrees that rescission shall not be available as a remedy for any Relevant Claim and the amount claimed is within the period of 6 months beginning with the Completion Dateit agrees not to seek that remedy.
6.7 8.17 Nothing in this clause 6 8 applies to a Claim or a claim under the Tax Covenant that arises or is delayed as a result of dishonesty, fraud, wilful misconduct fraud or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIESSellers.
7.1 8.18 The Buyer agrees to procure that Sellers shall not plead the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company Limitation ▇▇▇ ▇▇▇▇ in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual any claims made under the Tax Warranties or recurring nature (apportioned on a day Tax Covenant up to day basis)
7.3.3 seven years after the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure LetterCompletion Date.
Appears in 1 contract
Sources: Share Purchase Agreement (Wireless Telecom Group Inc)
Limitations on Claims. 6.1 The definitions and rules of interpretation 9.1 Save as provided in clause 9.7, the provisions of:
(a) this clause apply in this Agreement “Claim” a claim for breach of any 9.1 and Schedule 11 limit the liability of the Warranties “Substantiated Claim” a Seller in relation to any Claim in respect and (where specifically provided) any claim under the Tax Covenant; and
(b) paragraph 5 of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause Schedule 4 (Tax Covenant) limits the liability of the Seller in relation to any Claimclaim under the Tax Covenant.
6.3 9.2 The aggregate liability of the Seller for all Substantiated Claims, Relevant Indemnity Claims when taken together and all claims under the Tax Covenant shall not exceed £350,000the aggregate value and amount of:
6.4 (a) the Consideration actually paid in cash pursuant to this agreement;
(b) the sum paid to Dentons UKMEA LLP, as lawyers for the Bank (in respect of repayment of “Facility A” under the BLME Finance Documents) pursuant to clause 3.3(b) of this agreement;
(c) an amount equal to the aggregate value assigned to the Earn-out Shares under clause 6;
(d) any sums actually paid in cash to P▇▇▇ ▇▇▇▇▇ under Schedule 1 of his service agreement with the Company and the PL Side Letter; and
(e) an amount equal to the aggregate value assigned to any shares of Buyer Stock allotted and issued to P▇▇▇ ▇▇▇▇▇ under Schedule 1 of his service agreement with the Company and the PL Side Letter.
9.3 The Seller shall not be liable for a Claim unless:
6.4.1 (a) the Seller’s liability in respect of such Claim (together with any connected Claims) exceeds £5,000; and
(b) the amount of a Substantiated Claimthe Seller’s liability in respect of such Claim (together with any connected Claims), or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 when aggregated with the amount of Seller’s liability for all Substantiated Claims that are not excluded under clause 6.4.1 when taken together9.3(a) and all claims under the Tax Covenant, exceeds £10,00030,000, in which case the Seller shall be liable for the whole amount claimed (and not just the amount by which the limit threshold in this clause 6.4.2 9.3(b) is exceeded) ). For the purposes of this clause 9.3, a Claim is recoverable by connected with another Claim if the Claims arise from the same event or set of circumstances, or relate to the same subject matter.
9.4 The Seller shall not be liable for a Claim or Indemnity Claim unless notice in writing summarising the nature of the Claim or Indemnity Claim (in so far as it is known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Seller:
6.5 (a) in the case of a claim made under the Tax Warranties, on or before the seventh anniversary of Completion; or
(b) in respect of any other Claim or an Indemnity Claim, prior to the expiry of the period of two years commencing on the Completion Date.
9.5 The Claim or Indemnity Claim shall be deemed to have been withdrawn (if not previously satisfied, settled or withdrawn) six months after notice of it has been given pursuant to this clause unless proceedings in respect of it have been issued and served on the Seller.
9.6 The Seller is shall not be liable for any a Claim to the extent that the Claim:
6.5.1 (a) relates to matters Disclosed; or;
6.5.2 (b) relates to any matter specifically and fully provided for in the Accounts or the Management Accounts; or
6.6 The Seller (c) is not liable for based on a Claim liability which is contingent only unless the Buyer has given the Seller notice and until such contingent liability becomes an actual liability and is due and payable in writing of the Claim, summarising the nature of the Claim as far as it is known to the Buyer and the amount claimed is within which case the period of 6 months beginning with as set out in clause 9.4(b) shall run from the Completion Datedate on which the liability becomes an actual liability.
6.7 9.7 Nothing in this clause 6 9, Schedule 4 or Schedule 11 applies to exclude or limit the liability of the Seller:
(a) to the extent that a Claim, Indemnity Claim that or a claim under the Tax Covenant arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIESadvisers; or
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATMb) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all ratesa breach of any of the warranties in paragraph 1.1, water ratesparagraph 1.2, insurance premiumsparagraph 2.1, telephoneparagraph 2.2, electricity and gas charges and other outgoings paragraph 2.3, paragraph 2.4, paragraph 13.2, the second sentence of an annual paragraph 14.12, paragraph 17 or recurring nature (apportioned on a day paragraph 31 of Part 1 of Schedule 3.
9.8 The Seller shall not plead the Limitation A▇▇ ▇▇▇▇ in respect of any claims made under the Tax Warranties or Tax Covenant up to day basis)seven years after the Completion Date.
7.3.3 the Seller will procure that ATM will pay to 9.9 Where the Company amounts equal is entitled to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and recover from a third party or claim reimbursement of all or any other part of a sum which forms all or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations part of any Claim (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breachrelation to an OLR SPA Tax Claim), non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that it takes reasonable steps to enforce the Company shall assign recovery or transfer as appropriate reimbursement before making a Claim.
9.10 If the Property Leases Seller pays to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claimsan amount in respect of a Claim or Indemnity Claim and the Buyer subsequently receives from a third party a sum which is referable to that matter the Buyer shall, as soon as reasonably practicable, repay to the Seller the amount so received less the reasonable costs and liabilities indirectly expenses incurred by the Buyer in obtaining or directly incurred recovering that sum, provided that the Seller shall not receive more than the aggregate amount paid by it in respect of that Claim or Indemnity Claim.
9.11 Nothing in this agreement shall be deemed to relieve the Buyer from its common law duty to mitigate its loss.
9.12 Neither the Buyer nor any member of the Buyer’s Group shall be entitled to recover damages or any other amount in respect of any Claim or Indemnity Claim or otherwise obtain reimbursement or restitution more than once in respect of the Property Leases and in respect of the transfer of the Employees same matter, loss or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Letterliability.
Appears in 1 contract
Limitations on Claims. 6.1 The definitions and rules of interpretation 9.1 Save as provided in clause 9.7, this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause 9 limits the liability of the Seller in relation to any ClaimClaim and, where expressly provided, any Indemnity Claim and any claim under the Tax Covenant.
6.3 9.2 The aggregate liability of the Seller for all Substantiated Claims, all Indemnity Claims when taken together and all claims under the Tax Covenant shall not exceed £350,000an amount equal to the Purchase Price.
6.4 9.3 The Seller shall not be liable for a Claim unless:
6.4.1 (a) the Seller's liability in respect of such Claim (together with any connected Claims) exceeds £1,000.00; and
(b) the amount of a Substantiated the Seller's liability in respect of such Claim, either individually or of a series of connected Substantiated when aggregated with their liability for all other Claims of which that Substantiated Claim is one(other than those excluded under clause 9.3(a)), exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not excluded under clause 6.4.1 when taken together, exceeds £10,00020,000.00, in which case the Seller shall be liable for the whole amount (of the Claim and not just the amount by which above the limit threshold specified in this clause 6.4.2 9.3(b). For the purposes of this clause 9.3, a Claim is exceededconnected with another Claim if the Claims arise from the same facts, events or circumstances.
9.4 The Seller shall not be liable for a Claim unless notice in writing summarising the nature of the Claim or Indemnity Claim (as the case may be) (in so far as it is recoverable by known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Seller:
6.5 (a) in the case of a Claim for breach of the Tax Warranties, on or before the seventh anniversary of the Completion Date; or
(b) in the case of a claim for breach of any other Warranties, within the period of 2 years commencing on the Completion Date; or
(c) in the case of an Indemnity Claim, within the period of 3 years commencing on the Completion Date
9.5 The Seller shall have no liability in respect of a Claim or an Indemnity Claim if and to the extent that such Claim or Indemnity Claim is based upon a contingent liability unless and until such liability becomes an actual liability.
9.6 The Seller shall not be liable for any a Claim if and to the extent that the Claim:
6.5.1 (a) arises from facts, events or circumstances that have been Disclosed;
(b) relates to matters Disclosed; or
6.5.2 relates to any a matter specifically and fully provided for in the Completion Accounts.
6.6 9.7 The Seller shall not be liable in respect of any Claim or an Indemnity Claim if and to the extent that it arises, or its value is increased, as a result of a change in any law, legislation, rule or regulation (including any new law, legislation, rule or regulation) that comes into force or otherwise takes effect after Completion.
9.8 The Seller shall not be liable for in respect of any Claim or Indemnity Claim if the matter or circumstance giving rise to such Claim or Indemnity Claim arises, occurs or is otherwise attributable to, or to the extent that the Seller's liability pursuant to such Claim or Indemnity Claim is increased as a result of:
(a) any voluntary act, omission, transaction or arrangement of the Buyer or the Company (or their respective directors, employees or agents) on or after Completion except where such act, transaction, omission or arrangement was:
(i) carried out or effected pursuant to a legally binding obligation entered into on or before the date of this agreement;
(ii) in the ordinary course of business of the Company as carried on at Completion; or
(iii) carried out in accordance with the rules, regulations, guidance or requirements of the Regulatory Authority.
(b) any change in the accounting bases, policies, practices or methods applied in preparing any accounts or valuing any assets or liabilities of the Company introduced or having effect after Completion (other than to the extent such changes are necessary to comply with applicable law or generally accepted accounting principles in force at or prior to Completion).
9.9 The provisions of this clause 9.9 shall apply if the Buyer becomes aware of any dispute, claim, demand, action or proceedings between the Buyer or the Company and a third party which might reasonably be considered likely to give rise to a Claim unless or an Indemnity Claim (a Third Party Dispute).
(a) In the event of a Third Party Dispute, the Buyer has given the Seller notice shall:
(i) as soon as reasonably practicable, and in writing any event with 20 Business Days of the Claimdate upon which the Buyer (or any other member of the Buyer's Group) becomes aware of the Third Party Dispute give written notice of the Third Party Dispute to the Seller, summarising specifying in reasonable detail the nature of the Claim as far as it is known Third Party Dispute;
(ii) keep the Seller fully informed of the progress of, and all material developments in relation to, the Third Party Dispute;
(iii) provide the Seller with copies of all material information and correspondence relating to the Buyer Third Party Claim and the amount claimed is within the period of 6 months beginning with the Completion Date
6.7 Nothing in this clause 6 applies to a Claim that arises or is delayed such other information as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours may reasonably require;
(iv) subject to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller indemnifying the Buyer in accordance with clause 9.9
(b) the Buyer shall procure that ATM shall supply take (or cause each member of the Buyer's Group to take) such information and references action as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with may reasonably request to avoid, dispute, resist, mitigate, compromise or defend the reversioner Third Party Dispute, or to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company appeal against any judgment given in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Letterit.
Appears in 1 contract
Sources: Share Purchase Agreement (Concierge Technologies Inc)
Limitations on Claims. 6.1 The definitions and rules of interpretation 7.1 Save as provided in clause 7.6, this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause 7 limits the liability of the Seller in relation to any ClaimClaim and (where specifically provided) any claim under the Tax Covenant.
6.3 7.2 The aggregate liability of the Seller for all Substantiated Claims when taken together and all claims under the Tax Covenant, shall not exceed £350,00010,000,000.
6.4 7.3 The Seller shall not be liable for a Claim unless:
6.4.1 (a) the Seller's liability in respect of such Claim (together with any connected Claims) exceeds £2,000,000; and
(b) the amount of a Substantiated the Seller's liability in respect of such Claim, either individually or of a series of connected Substantiated when aggregated with the Seller's liability for all other Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not (other than those excluded under clause 6.4.1 when taken together, 7.3(a)) and all claims under the Tax Covenant exceeds £10,0002,000,000, in which case the Seller shall be liable for the whole amount (of the Claim and not just the amount by which above the limit threshold specified in this clause 6.4.2 7.3(b). For the purposes of this clause 7.3, a Claim is exceeded) connected with another Claim if the Claims arise from the same facts, events or circumstances.
7.4 The Seller shall not be liable for a Claim unless notice in writing summarising the nature of the Claim (in so far as it is recoverable by known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Seller:
6.5 (a) in the case of a Claim for breach of the Tax Warranties, on or before the seventh anniversary of Completion; or
(b) in any other case, within the period of 5 years commencing on the Completion Date.
7.5 The Seller is shall not be liable for any a Claim if and to the extent that the Claim:
6.5.1 relates to matters (a) arises from facts, events or circumstances that have been Disclosed; or
6.5.2 (b) relates to any a matter specifically and fully provided for in the Accounts.
6.6 The Seller is not liable for a Claim unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as far as it is known to the Buyer and the amount claimed is within the period of 6 months beginning with the Completion Date
6.7 7.6 Nothing in this clause 6 7 or Schedule 5 applies to exclude or limit the liability of the Seller:
(a) if and to the extent that a Claim that or a claim under the Tax Covenant arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASESadvisers; or
(b) for any Claim made under the Warranties in paragraph 1.1, COVENANT & INDEMNITIESparagraph 1.2, paragraph 2.2, paragraph 2.3 or paragraph 2.6 of Part 1 of Schedule 4.
7.1 7.7 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain not plead the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company Limitation ▇▇▇ ▇▇▇▇ in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual any claims made under the Tax Warranties or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure LetterTax Covenant.
Appears in 1 contract
Sources: Share Purchase Agreement
Limitations on Claims. 6.1 11.1. The definitions and rules of interpretation in this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause limits the liability of the Seller in relation to any Claim
6.3 The liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000
6.4 The Seller Vendors shall not be liable for a any Relevant Claim unlessor, where specifically referred to, any claim under the Tax Deed:
6.4.1 (a) unless written notice of such Relevant Claim is given by the Purchaser to the Vendors identifying the Warranties alleged to have been breached, as far as it is possible to do so (on the basis of the information available on the date of such notice), and setting out such details as are in the knowledge or otherwise the possession of the Purchaser (or any Group Company) with respect to the matter in respect of which such claim is made including (if reasonably practicable and without any obligation to incur third party costs) an estimate as to the amount of such claim:
(i) within two years following Completion; or
(ii) within seven years from Completion in respect of a Substantiated Claimclaim under the Tax Warranties, and any such claim shall (if it has not been previously satisfied, settled or withdrawn) be deemed to be withdrawn and the Vendors shall have no liability in respect of the same unless legal proceedings in respect of it have been issued within six months after the relevant time limit set out above;
(b) unless the amount of the liability in respect of that Relevant Claim or claim under the Tax Deed exceeds £5,000 (save that claims relating to a series of connected Substantiated Claims matters shall be aggregated for this purpose);
(c) save in relation to any claims under clauses 2.8 and 2.9 of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 the Tax Deed unless the amount of the liability in respect of that Relevant Claim or claim under the Tax Deed when aggregated with the amount of the liability in respect of all Substantiated other Relevant Claims that are not excluded or claims under the Tax Deed exceeds 1% of the aggregate of the Consideration and the amount payable under clause 6.4.1 when taken together, exceeds £10,000, 3.7(b) in which case event the Vendors will be liable for the whole amount (of such liability and not just merely the excess;
(d) to the extent that a provision or reserve for the matter or liability which would otherwise give rise to the Relevant Claim in question has been made or taken into account in calculating any provision or reserve in the Last Accounts (provided that, where less than the full amount of the liability for the Relevant Claim in question has been so made or so taken into account, this clause 11.1(d) shall not exclude liability in respect of the difference between the full amount and the amount so made or so taken into account);
(e) to the extent that such Relevant Claim would not have arisen but for a change in legislation or any regulation, published practice or policy of any Tax Authority or any government, governmental department, agency or regulatory body, or enacted after the date of this Agreement (including, without limitation, any change relating to Taxation, rates of Taxation or otherwise);
(f) to the extent that such Relevant Claim would not have arisen but for a change made after Completion in the accounting policies or practices of the (i) Purchaser or any Group Company except where such changes are necessary to correct historic non-compliance by which a Group Company prior to Completion with the limit relevant provisions (in this clause 6.4.2 is exceededeffect prior to Completion) is recoverable of UK GAAP; or (ii) from any reorganisation or change of ownership of the Purchaser or any member of the Purchaser's Group (as enlarged by the Buyeracquisition of the Shares) after Completion;
6.5 The Seller is not liable for any Claim (g) to the extent that the ClaimRelevant Claim would not have arisen but for any voluntary act, omission, transaction or arrangement carried out:
6.5.1 relates to matters Disclosed(i) by the Vendors or any of the Group Companies at the request of or with the written consent of the Purchaser before Completion (but for the avoidance of doubt excluding the Group Rationalisation and the Initial Transfer); or
6.5.2 relates (ii) by any member of the Purchaser's Group (including, for the avoidance of doubt, any Group Company) after Completion unless such act, omission transaction or arrangement (i) occurred in the ordinary and usual course of business as carried on at the date of this Agreement; or (ii) could not reasonably have been avoided, having regard to all relevant circumstances; or (iii) was carried out in accordance with any Contract entered into on or before Completion.
(h) to the extent that the liability giving rise to the Relevant Claim is re-covered under a policy of insurance in force on the date of this Agreement.
(i) to the extent that the liability giving rise to the Relevant Claim is contingent unless and until such liability becomes an actual liability and is due and payable (and in relation to any matter specifically such claim the six month time limit referred to in clause 11.1(a) shall be deemed to run from the date on which the relevant liability shall become an actual liability and fully provided be due and payable).
11.2. The Vendors aggregate liability for in all Relevant Claims, together with claims under the Accounts
6.6 The Seller is Tax Deed, shall not liable for a Claim unless the Buyer has given the Seller notice in writing exceed 50% of the Claim, summarising the nature aggregate of the Claim as far as it is known to the Buyer Consideration and the amount claimed is within payable under clause 3.7(b).
11.3. The Purchaser agrees that it and the period relevant Group Companies will take all reasonable steps to mitigate any loss which in the absence of 6 months beginning with the Completion Date
6.7 Nothing in this clause 6 applies such mitigation would, or would be reasonably likely to, give rise to a liability in respect of any Relevant Claim provided that arises any Costs incurred by such Group Company in taking such steps shall be accounted for in assessing the amount of any such Relevant Claim.
11.4. If the Vendors pay an amount in discharge of any Relevant Claim and the Purchaser or is delayed as any of the Group Companies subsequently recovers (whether by payment, discount, credit, relief or otherwise) from a result third party a sum which relates to the subject matter of dishonestythe Relevant Claim, fraudthe Purchaser shall pay, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to shall procure that the Property Leases are relevant Group Company pays, to the Vendors so much of the amount recovered by the Purchaser as does not exceed the sum recovered from the third party (less all reasonable costs, charges and expenses properly assigned at incurred by the Seller’s cost Purchaser in recovering that sum from such third party). In the event that the Purchaser or any Group Company becomes entitled to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior seek recovery from a third party in the circumstances described in the preceding sentence, the Purchaser shall, without prejudice to Completion the Seller shall any other provisions of this clause 11, use all reasonable endeavours to obtain pursue recovery of such sum from such third party
11.5. The Purchaser shall not be entitled to recover from the grant Vendors under the Transaction Documents more than once in respect of the same matter.
(a) If the Purchaser or any Group Company becomes aware of any reversioner’s licences necessary claim by any third party which would give rise to enable a Relevant Claim (a "Third Party Claim") the Property Leases Purchaser shall give notice of that fact as soon as possible to be assigned and the Vendors, setting out reasonable details as to assist with the obtaining nature of such licences claim, but any failure to give such notice shall not affect the Seller rights of the Purchaser in respect of any Relevant Claim but without prejudice to the Purchaser's obligation to mitigate.
(b) Without prejudice to the validity of any such claim or alleged claim in question, the Purchaser shall allow, and shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leasesrelevant Group Companies allow, the Seller will procure that ATM will covenant direct with Vendors and their professional advisers to reasonably investigate the reversioner matter or circumstance alleged to pay the rents give rise to such Third Party Claim and observe whether and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence to what extent any amount is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company payable in respect of all ratessuch Third Party Claim and for such purpose the Purchaser shall give, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear the relevant Group Companies give, all third partysuch reasonable information and reasonable assistance, public liability including reasonable access to premises and employer’s liability risks attached personnel, and the right to examine and copy or photograph at their own expense any assets, accounts, documents and records, as the occupation and use of Vendors or their professional advisers may reasonably request.
(c) If the Property Leases and shall indemnify Purchaser or the Company against them
7.4 Forthwith upon become aware of any Relevant Claim which gives or may give rise to a claim under this Agreement, the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer Purchaser shall, or shall procure that the Company shall, as soon as reasonably practicable give written notice of the Relevant Claim to the Vendors but any failure to give such notice shall assign not affect the rights of the Purchaser in respect of any Relevant Claim but without prejudice to the Purchaser's obligation to mitigate.
(d) If the Vendors in writing require, the Purchaser shall, or transfer shall procure that the Company shall, supply the Vendors with such available and relevant details, documentation, correspondence and information and shall take such action as appropriate the Property Leases Vendors may reasonably request in writing to ATM with full title guarantee
7.5 The Seller agrees to indemnify negotiate, avoid, dispute, resist, compromise, defend or appeal against the Buyer against all claims, costs Relevant Claim and liabilities indirectly or directly incurred any adjudication in respect of the Property Leases Relevant Claim (including, allowing the Vendors or its advisors to undertake the conduct of the Relevant Claim) provided that the Vendors shall first indemnify the Company and the Purchaser to the reasonable satisfaction of the Purchaser against all Costs.
(e) If the Vendors or their advisors do not undertake the conduct of any action in respect of a Relevant Claim under clause (d), the Purchaser shall keep the Vendors fully informed of the progress in settling the Relevant Claim and shall at the Vendors' written request, as soon as reasonably practicable, forward, or procure to be forwarded to the Vendors, copies of all written correspondence and documentation pertaining to it.
(f) If the Vendors or their advisors do undertake the conduct of any action against a Relevant Claim under clause (d):
(i) the Vendors shall keep the Purchaser fully informed of the progress in settling the Relevant Claim and shall at the Purchaser's written request, as soon as reasonably practicable, forward, or procure to be forwarded to the Purchaser, copies of all written correspondence and documentation pertaining to it; and
(ii) the Vendors shall or shall procure that their advisors shall provide the Purchaser with a reasonable opportunity to make reasonable recommendations to the Vendors about the manner in which the conduct of the action in respect of the transfer Relevant Claim is to be conducted and the Vendors shall act on such reasonable recommendation.
(g) The Purchaser will not be required to take or procure that a Company will take any action mentioned in clause (d) and the Vendors will not be permitted to take or procure the conducting of any action under clause (d):
(i) which it considers to be materially prejudicial to the business or Tax affairs of any Company, the Purchaser or any other member of the Employees same group of companies as the Purchaser or on any other reasonable ground; or
(ii) which involves contesting a Relevant Claim beyond the first appellate body (excluding the Tax Authority which has initiated the action in respect of the Excluded Assets pursuant Relevant Claim) in the jurisdiction concerned unless the Vendors obtain (at the Vendors' cost and expense) the opinion of tax counsel of at least 5 years' call that it is reasonable in all circumstances to make such an appeal.
(h) If the Vendors fail promptly (and in any event within 10 Business Days of the Purchaser giving notice requiring the Vendors to do so) to inform the Purchaser of any action which the Vendors wish the Purchaser to take or to procure a Group Company to take under clause (d), the Purchaser will be entitled to procure that the Company settles or compromises any Relevant Claim on such terms as it determines in its absolute discretion. The limitations in this clause 11 shall not apply to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed Warranties in the Disclosure Letterparagraph 1 of Schedule 3.
Appears in 1 contract
Sources: Sale and Purchase Agreement (AMF Worldwide Bowling Centers Holdings Inc.)
Limitations on Claims. 6.1 The definitions and rules of interpretation in this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause limits the liability of the Seller in relation to any Claim
6.3 The liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000
6.4 4.1 The Seller shall not be liable for a Claim unlessor a claim under the Tax Covenant unless notice in writing of the Claim or the claim under the Tax Covenant, summarising the nature of the Claim or the claim under the Tax Covenant (in so far as it is known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Seller:
6.4.1 (i) in the case of a claim made under the Warranties in Part B of Part 4 of this Schedule, on or before the seventh anniversary of Closing; or
(ii) in the case of a claim under the Tax Covenant, within the period specified in paragraph 5.1 of the Tax Covenant; or
(iii) in any other case, on or before the second anniversary of Closing.
4.2 There shall be disregarded for all purposes any Claim in respect of which the amount which the Buyer would otherwise (but for the provisions of this Paragraph 4.2) be entitled to recover would be less than US$50,000 provided however that multiple claims arising out of the same or similar underlying cause may be aggregated for the purposes of determining whether this US$50,000 de minimis has been exceeded.
4.3 The aggregate liability of the Seller in respect of all and any Claims and all and, any claims under the Tax Covenant shall be limited to and shall in no event exceed an amount equal to US$300,000.
4.4 The Seller shall not be liable in respect of any Claim based upon a liability which is contingent or unquantifiable unless, and to the extent that until such contingent liability becomes an actual liability or such unquantifiable liability becomes quantifiable, provided that this Paragraph 4.5 shall not operate to avoid a Claim made in respect of a Substantiated Claim, contingent or of a series of connected Substantiated Claims of unquantifiable liability which is notified to the Seller within the applicable time limit specified in Paragraph 4.1 above to the extent that Substantiated Claim is one, exceeds £1,000; andthe contingent or unquantifiable liability subsequently becomes an actual or quantifiable liability (as the case may be).
6.4.2 the amount of all Substantiated Claims that are not excluded under clause 6.4.1 when taken together, exceeds £10,000, in which case the whole amount (and not just the amount by which the limit in this clause 6.4.2 is exceeded) is recoverable by the Buyer
6.5 4.5 The Seller is shall not be liable for in respect of any Claim to the extent that the facts or circumstances giving rise to such Claim are capable of remedy and are remedied or otherwise compensated by or at the expense of the Seller within 20 Business Days of the date on which notice of such Claim is given pursuant to Paragraph 4.2 above. The Buyer shall (at the Seller’s expense and subject to being indemnified to the Buyer’s satisfaction in respect of any cost, loss or liability incurred on so complying) comply with all reasonable written requests made by the Sellers during that 20 Business Day period for the purposes of so remedying any such breach or preventing any such loss.
4.6 If the Buyer becomes aware of any claim, action or demand made against Transgenomic Limited by a third party (a "Third Party Claim") which may give rise to a Claim the Buyer shall:
6.5.1 relates (i) not make any admission of liability, agreement or compromise with any person, body or authority in relation to matters Disclosed; or
6.5.2 relates that Third Party Claim without the prior written consent of the Seller (such consent not to any matter specifically and fully be unreasonably withheld, delayed or conditioned) provided for that nothing in the Accounts
6.6 The Seller is not liable for a Claim unless this paragraph shall prevent the Buyer has given from agreeing (or permitting to be agreed) any compromise or settlement, or from making any payment in respect of a Third Party Claim if the Buyer (acting reasonable) considers that a failure to do so will be materially prejudicial to its interests or those of Transgenomic Limited or otherwise change the goodwill of its business or that of Transgenomic Limited in any material respect;
(ii) as soon as practicable, notify the Seller notice in writing of the Claimgiving reasonable details, summarising the nature of the Claim as so far as it is are known to the Buyer, of the relevant facts and circumstances relating to the Third Party Claim; and
(iii) keep the Seller reasonably informed of all material developments in relation to the Third Party Claim within its knowledge and consult with the Seller with regard to any actual or proposed developments relating to the matter in question save where to do so would or might reasonably breach or endanger the legal privilege of the Buyer in any such documents or records or any obligations of confidentiality owed to a third party.
4.7 If the Seller pays to the Buyer an amount in respect of a Claim and the Buyer or Transgenomic Limited subsequently recovers from another person an amount claimed which is within referable to the period matter giving rise to that Claim, the Buyer shall as soon as practicable repay to the Seller the amount so received or recovered (less the reasonable costs incurred by Transgenomic Limited or the Buyer in recovering such amount), up to the amount which has been paid by the Seller in respect of 6 months beginning with such Claim.
4.8 Notwithstanding any other provision of this Agreement, the Completion DateBuyer shall be obliged to mitigate any loss or damage which it may suffer or incur as a consequence of a matter giving rise to any breach of any Warranty, Claim or other claim under this Agreement.
6.7 4.9 Nothing in this clause 6 paragraph 4 applies to exclude or limit the liability of the Seller to the extent that a Claim that or a claim under the Tax Covenant arises or is delayed as a result of dishonesty, fraud, wilful misconduct fraud or wilful concealment fraudulent non-disclosure by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Letteradvisers.
Appears in 1 contract
Limitations on Claims. 6.1 The definitions and rules of interpretation in
9.1 Save as provided under clause 9.10, this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause 9 limits the liability of the Seller Sellers in relation to any ClaimClaim and (where specifically provided) any claim under the Tax Covenant.
6.3 9.2 The liability of the each Seller for all Substantiated Claims, all claims under the Tax Covenant and any other claim under the Agreement or connected therewith or arising as a consequence of the transactions covered by the Agreement, but excluding Fundamental Warranty Claims when taken together shall not exceed £350,000the figure set out opposite each Sellers’ respective name in column 4 of Part 1 of Schedule 1. Each Seller shall only be liable for the percentage of any Claim or claim under the Tax Covenant or any other claim under the Agreement or connected therewith or arising as a consequence of the transactions covered by the Agreement as set out opposite each Sellers’ respective name in column 6 of Part 1 of Schedule 1.
6.4 9.3 The Seller Sellers shall not be liable for a Claim (excluding Fundamental Warranty Claims) and any other claim under the Agreement or connected therewith or arising as a consequence of the transactions covered by the Agreement unless:
6.4.1 9.3.1 the Sellers' liability in respect of such claim (together with any connected claims) exceeds £1,400; and
9.3.2 the amount of a Substantiated Claimthe Sellers’ liability in respect of such claim, either individually or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 when aggregated with the amount of Sellers’ liability for all Substantiated Claims that are not other claims (other than those excluded under clause 6.4.1 when taken together, 9.3.1) exceeds £10,00014,000, in which case the Sellers shall be liable for the whole amount (of the claim and not just the amount by which above the limit threshold specified in this clause 6.4.2 is exceeded) is recoverable by the Buyer9.3.2.
6.5 9.4 The Seller is Sellers shall not be liable for any a Claim excluding the Fundamental Warranties Claims if and to the extent that the Claim:
6.5.1 relates to matters 9.4.1 arises from facts, events or circumstances that have been Disclosed; or;
6.5.2 9.4.2 relates to any a matter specifically and fully provided for in the Accounts.
6.6 9.5 The Seller is Buyer shall not be entitled to make a Claim if and to the extent that the facts, matters, events or circumstances giving rise to the Claim are within the actual knowledge of:
9.5.1 ▇▇▇▇ ▇▇▇▇▇▇; and
9.5.2 ▇▇▇▇▇▇ ▇▇▇▇▇, (each of the Buyer).
9.6 The Sellers shall not be liable for a Claim and any other claim under the Agreement or connected therewith or arising as a consequence of the transactions covered by the Agreement unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as claim (in so far as it is known to the Buyer and Buyer) and, as far as is reasonably practicable, the amount claimed is within claimed, has been given by or on behalf of the Buyer to the Sellers:
9.6.1 in the case of a claim for breach of the Tax Warranties on or before the seventh anniversary of Closing; and
9.6.2 in any other case, the period of 6 two years commencing on the Closing Date.
9.7 The liability of each Seller for all Fundamental Warranty Claims shall not exceed the figure set out opposite each Sellers’ respective name in column 5 of Part 1 of Schedule 1.
9.8 Any Claim and any other claim under the Agreement or connected therewith or arising as a consequence of the transactions covered by the Agreement that is notified in accordance with this clause shall (if not previously satisfied, settled or withdrawn) be deemed to have been irrevocably withdrawn twelve months beginning with after the Completion Datedate on which notice of the relevant claim was given (and no new claim may be made in respect of the same facts) unless, on or before that date, legal proceedings have been issued and served on any of the Sellers.
6.7 9.9 The Buyer is not entitled to recover damages or otherwise obtain payment, reimbursement, restitution or indemnity more than once in respect of the same loss, shortfall, damage, deficiency, breach or other event or circumstance.
9.10 Nothing in this clause 6 9 applies to exclude or limit the liability of any of the Sellers if and to the extent that a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by any of the SellerSellers, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Letteradvisers.
Appears in 1 contract
Sources: Share Purchase Agreement
Limitations on Claims. 6.1 The definitions and rules 8.1 Save as provided in clause 8.18, the provisions of interpretation in this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause limits 8 limit the liability of the Seller Warrantors in relation to any Claim, any Tax Warranty Claim and (where specifically provided) any Tax Covenant Claim and any claim under clause 10.
6.3 8.2 The aggregate liability of the Seller Warrantors for all Substantiated Claims when taken together and all Tax Warranty Claims, Tax Covenant Claims and claims under clause 10 shall not exceed £350,000an amount equal to US$3,000,000 (three million US dollars) in pounds sterling (calculated by reference to the Applicable Exchange Rate).
6.4 8.3 Subject to clause 8.4 below, the maximum liability of each Warrantor under or in connection with this agreement in respect of all Claims, Tax Warranty Claims, Tax Covenant Claims or claims under clause 10 shall not exceed the proportion of that claim set out opposite his, her or its name in the table set out below:
8.4 The Seller maximum aggregate liability of each Warrantor under or in connection with this agreement in respect of all Claims, Tax Warranty Claims, Tax Covenant Claims or claims under clause 10 shall not exceed the amount set out opposite his, her or its name in the table set out below:
8.5 The Warrantors shall not be liable for a Claim unless:
6.4.1 the amount of (other than a Substantiated Tax Warranty Claim, ) or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not excluded any claim under clause 6.4.1 when taken together, exceeds £10,000, in which case the whole amount (and not just the amount by which the limit in this clause 6.4.2 is exceeded) is recoverable by the Buyer
6.5 The Seller is not liable for any Claim to the extent that the Claim:
6.5.1 relates to matters Disclosed; or
6.5.2 relates to any matter specifically and fully provided for in the Accounts
6.6 The Seller is not liable for a Claim 10 unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as (in so far as it is known to the Buyer and Buyer) and, as far as is reasonably practicable, the amount claimed claimed, has been given by or on behalf of the Buyer, as soon as is within reasonably practicable after the Buyer becomes aware of the matter or circumstance giving rise to the Claim (provided that, subject to the time limit set out below, failure to provide any such notice shall not prevent the Buyer from bringing a Claim on the basis of such matter or circumstance) and, in any event, to the Warrantors, prior to the expiry of the period of 6 months beginning with two years commencing on the Completion Date.
6.7 Nothing 8.6 The Warrantors shall not be liable for a Tax Warranty Claim or a Tax Covenant Claim unless notice in writing summarising the nature of the Tax Warranty Claim or the Tax Covenant Claim (in so far as it is known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Warrantors (provided that, subject to the time limit set out below, failure to provide any such notice shall not prevent the Buyer from bringing a Tax Warranty Claim or Tax Covenant Claim on the basis of such matter or circumstance), prior to the expiry of the period of seven years commencing on the Completion Date.
8.7 The liability of the Warrantors specified in a notice given pursuant to clauses 8.5 and 8.6 above shall absolutely cease and determine if proceedings in respect of any Claim, Tax Warranty Claim or Tax Covenant Claim shall not have been issued and served on the Warrantors, or the amount payable agreed between the parties, within 12 months after the notice referred to in clauses 8.5 and 8.6 is served.
8.8 The Warrantors shall not be liable for any Claim, Tax Warranty Claim or Tax Covenant Claim (except for Tax Covenant Claims under paragraphs 2.3, 2.4 and 2.5 of Schedule 5) unless and until (a) the Warrantors’ liability in respect of such claim exceeds £10,000 and (b) the aggregate liability of the Warrantors for all such claims exceeds £100,000, in which case the Warrantors shall be liable for the entire amount of such claims and not just the excess. For the purposes of this clause 6 applies 8.8, a number of claims arising out of the same subject matter shall be aggregated to form a single claim.
8.9 The Warrantors shall not be liable for a Claim or a Tax Warranty Claim to the extent that arises the Claim or the Tax Warranty Claim:
8.9.1 relates to matters which have been Disclosed;
8.9.2 relates to any matter specifically provided for or reserved in the Accounts or the Management Accounts;
8.9.3 would not have arisen or occurred but for (or is delayed increased as a result of dishonestyof):
(a) any voluntary act, fraudevent, wilful misconduct transaction or wilful concealment arrangement entered into after Completion by the SellerBuyer, its agents the Guarantor (or advisers 7 ASSIGNMENT OF PROPERTY LEASESany person connected to the Buyer or the Guarantor) or the Company otherwise than in the ordinary course of business;
(b) any change in any law, COVENANT & INDEMNITIESrule, regulation, interpretation of the law or administrative practice of any government, governmental department, agency or regulatory body (whether or not having the force of law) or any increase in the rates, method of calculation or scope of Taxation or any imposition of Taxation after the date of this agreement;
7.1 (c) any voluntary winding-up or voluntary cessation after Completion of any business or trade carried on by the Company;
(d) any claim, election, surrender or disclaimer made or omitted to be made or notice or consent given or omitted to be given by the Buyer’s Group under any Tax statute, the making or giving of which was taken into account in computing the provision for Tax in the Accounts; or
8.9.4 arises from an act, event, transaction or arrangement of the Sellers, the Optionholders or the Company prior to Completion occurring at the written request of the Buyer, the Guarantor or their advisers.
8.10 The liability of the Warrantors for any Claim or Tax Warranty Claim shall be reduced to the extent that:
8.10.1 the loss or damage is actually recovered by the Buyer or the Company under any policy of insurance;
8.10.2 the Claim is based upon a liability which is contingent only, unless and until such contingent liability becomes an actual liability or until the same is finally adjudicated;
8.10.3 there has been a corresponding saving of or credit in relation to Tax by the Buyer or the Company; or
8.10.4 any Sellers’ Relief (as defined in Schedule 5 to this agreement) is or can be set off against such liability.
8.11 The Buyer agrees shall not be entitled to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of recover more than once under this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred agreement in respect of the Property Leases same loss or liability.
8.12 If the Warrantors pay to the Buyer an amount in respect of any Claim or Tax Warranty Claim and the Buyer or the Company subsequently recovers from another person an amount in respect of the transfer of same loss or liability, the Employees or any of the Excluded Assets pursuant Buyer shall immediately pay to the ATM Transfer AgreementWarrantors:
7.6 The Seller agrees 8.12.1 if the amount paid by the Warrantors in respect of any Claim or Tax Warranty Claim is more than the Sum Recovered, an amount equal to indemnify the Buyer against all claimsSum Recovered; or
8.12.2 if the amount paid by the Warrantors in respect of any Claim or Tax Warranty Claim is less than or equal to the Sum Recovered, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in an amount equal to the Disclosure Letteramount paid by the Warrantors.
Appears in 1 contract
Sources: Share Purchase Agreement
Limitations on Claims. 6.1 The definitions and rules of interpretation Save as provided in clause 6.11, this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause 6 limits the liability of the Seller Sellers in relation to any ClaimClaim and (where specifically provided) any claim under the Tax Covenant.
6.3 6.2 The aggregate liability of the Seller Sellers for all Substantiated Claims when taken together shall not exceed £350,000500,000.
6.4 6.3 The Seller Sellers shall not be liable for a Claim unless:
6.4.1 (a) the Sellers’ liability in respect of such Claim (together with any connected Claims) exceeds £5,000; and
(b) the amount of a Substantiated the Sellers’ liability in respect of such Claim, either individually or of a series of connected Substantiated when aggregated with the Sellers’ liability for all other Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not (other than those excluded under clause 6.4.1 when taken together, 6.3(a)) exceeds £10,00050,000, in which case the Sellers shall be liable for the whole amount (of the Claim and not just the amount by which above the limit threshold specified in this clause 6.4.2 6.3(b). For the purposes of this clause 6.3, a Claim is exceeded) is recoverable by connected with another Claim if the BuyerClaims arise from the same or similar facts, events or circumstances or breach of the same Warranty.
6.5 6.4 The Seller is Sellers shall not liable for any Claim to the extent that the Claim:
6.5.1 relates to matters Disclosed; or
6.5.2 relates to any matter specifically and fully provided for in the Accounts
6.6 The Seller is not be liable for a Claim unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as (in so far as it is known to the Buyer and Buyer) and, as far as is reasonably practicable, the amount claimed is claimed, has been given by or on behalf of the Buyer to the Sellers:
(a) in the case of a Claim for breach of the Tax Warranties, on or before the seventh anniversary of Completion; or
(b) in any other case, within the period of 6 24 months beginning with commencing on the Completion Date.
6.5 The Sellers shall not be liable for a Claim if and to the extent that the Claim arises from facts, events or circumstances that have been Disclosed.
6.6 The Buyer shall not be entitled to recover from the Sellers any amount or loss pursuant to any provision of this Agreement to the extent that such amount or loss has been recovered by the Buyer under another provision of this Agreement.
6.7 In the event that the Buyer or the Company is at any time entitled to recover or otherwise claim reimbursement from a third party (including an insurer under any policy of insurance) in respect of any matter or circumstance giving rise to a Claim the following provisions shall apply:
(a) In respect of Claims of an individual value under £10,000 the Buyer shall (or shall procure that the Company shall) take reasonable steps to enforce such recovery or seek such reimbursement from the relevant third party and shall do so before making a Claim against the Sellers;
(b) the liability of the Sellers in respect of the related Claim shall be reduced by the amount (if any) actually recovered from the relevant third party (less all reasonable costs, charges and expenses incurred by the Buyer or the Company in recovering that sum) or extinguished if the amount recovered exceeds the amount of the relevant Claim; and
(c) if the Sellers make a payment to the Buyer in respect of a Claim and the Buyer or the Company recovers from a third party a sum which is preferable to that Claim within six months of the payment by the Sellers in respect of such Claim, the Buyer shall promptly repay to the Sellers the lower of:
(i) the amount recovered from such third party (less all reasonable costs, charges and expenses incurred by the Buyer or the Company in recovering that sum); and
(ii) the amount paid to the Buyer by the Sellers in respect of the relevant Claim.
6.8 The Sellers shall not be liable in respect of any Claim to the extent that it arises, or its value is increased, as a result of a change in any law, legislation, rule or regulation (including any new law, legislation, rule or regulation) that comes into force or otherwise takes effect after the date of this Agreement.
6.9 The Sellers shall not be liable in respect of any Claim or claim under the Tax Covenant to the extent that the matter or circumstance giving rise to such Claim arises, occurs or is otherwise attributable to, or the Sellers’ liability pursuant to such Claim is increased as a result of:
(a) any voluntary act, omission, transaction or arrangement of the Buyer or the Company (or their respective directors, employees or agents) on or after Completion except where such act, transaction, omission or arrangement was:
(i) carried out or effect pursuant to a legally binding obligation entered into on or before the date of this Agreement; or
(ii) in the ordinary course of business of the Company as carried on at Completion; or
(b) any voluntary act, omission, transaction or arrangement carried out at the request or with the consent of the Buyer before Completion; or
(c) any change in the accounting bases, policies, practices or methods applied in preparing any accounts or valuing any assets or liabilities of the Company introduced or having effect after Completion (other than to the extent such changes are necessary to comply with applicable law or generally accepted accounting principles in force at or prior to Completion).
6.10 The Sellers shall not be liable in respect of any Claim or any claim under the Tax Covenant to the extent that:
(a) the liability pursuant to such Claim or any claim under the Tax Covenant comprises penalties, charges or interest arising directly from any act, omission, transaction or arrangement of the Buyer or the Company after Completion;
(b) such liability would not have arisen but for any winding up or cessation after Completion of any business carried on by the Company; or
(c) such liability arises in respect of any re-valuation by the Buyer of the Company after Completion of property or assets owned by the Company
6.11 Nothing in this clause 6 or Part 5 of the Schedule applies to exclude or limit the liability of the Sellers:
(a) if and to the extent that a Claim that or a claim under the Tax Covenant arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the SellerSellers, its their agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIESadvisers; or
7.1 The Buyer agrees to procure that (b) for any claim under the Property Leases are properly assigned at Fundamental Warranties or the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure LetterTax Warranties.
Appears in 1 contract
Sources: Share Purchase Agreement (Interlink Electronics Inc)
Limitations on Claims. 6.1 The definitions and rules of interpretation in this 10.1 Subject to clause apply in this Agreement “Claim” a claim for breach of any of 9.4, the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause limits the aggregate liability of the Seller in relation to any Claim
6.3 The liability of the Seller Sellers for all Substantiated Claims when taken together shall not exceed £350,000an amount equal to the Base Purchase Price.
6.4 10.2 The Seller Sellers shall not be liable for a Claim unless:
6.4.1 (not being a Tax Claim) unless the amount of a Substantiated the Sellers’ liability in respect of such Claim, either individually or of a series of connected Substantiated Claims of which that Substantiated Claim is onewhen aggregated with the Sellers’ liability for all other Claims, exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not excluded under clause 6.4.1 when taken together, exceeds £10,00016,000, in which case the Sellers shall be liable for the whole amount claimed (and not just the amount by which above the limit threshold specified in this clause 6.4.2 is exceeded) is recoverable by the Buyerclause).
6.5 10.3 The Seller is Sellers shall not liable for any Claim to the extent that the Claim:
6.5.1 relates to matters Disclosed; or
6.5.2 relates to any matter specifically and fully provided for in the Accounts
6.6 The Seller is not be liable for a Claim (not being a Covenant Claim) unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as (in so far as it is known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Sellers:
10.3.1 in the case of a Tax Claim, a Claim for breach of Warranty number 1, or a Claim made under clause 9.7.9 above, on or before the seventh anniversary of Completion;
10.3.2 in the case of any other Claim, on or before the second anniversary of Completion.
10.4 The Sellers shall have no liability in respect of any Warranty Claim, if and to the extent that the matter giving rise to it results from any facts, matters, events or circumstances that have been Disclosed.
10.5 The Sellers shall have no liability in respect of any Claim that is not a Tax Claim, if and to the extent that the liability arises or its value is increased as a result of a change in any law after Completion (except where such change in law was announced before Completion).
10.6 If the Buyer receives any payment or benefit from any policy of insurance or any third party other than the Sellers as a result of the circumstances giving rise to a Claim (excluding a Tax Claim), and the Sellers have made any payment to the Buyer in respect of that Claim, the Buyer shall as soon as practicable after receipt pay to the relevant Sellers an amount claimed which is within the period lesser of 6 months beginning with the Completion Dateamount of the payment or benefit received from the insurer or other third party and the payment received from the Sellers, having deducted all costs, charges and expenses reasonably incurred by the Buyer in obtaining the payment or benefit.
6.7 10.7 Nothing in this clause 6 10 applies to exclude or limit the Sellers’ liability:
10.7.1 in respect of any of the Fundamental Warranties or Tax Warranties; and/or
10.7.2 if and to the extent that a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its Sellers (or the Sellers’ agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basisadvisers)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Letter.
Appears in 1 contract
Limitations on Claims. 6.1 The definitions and rules of interpretation 7.1 Save as provided in clause 7.6, the provisions of:
(a) this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause limits 7 limit the liability of the Seller Warrantors in relation to any ClaimClaim and (where specifically provided) any claim under the Tax Covenant; and
6.3 The (b) paragraphs 4 and 5 of Schedule 6 limit the liability of the Seller Warrantors in relation to any claim under the Tax Covenant.
7.2 The total aggregate liability of the Warrantors for all Claims and Substantiated Claims when taken together and all claims under the Tax Covenant shall not exceed £350,000an amount equal to the sum of:
6.4 (a) in respect of any Claim, Substantiated Claim or claim under the Tax Covenant notified to the Warrantors prior to the end of the Earn-out Period, the Earn-out Amount (as defined in Schedule 4) at a value of the average weighted share price in the twelve (12) months preceding the completion date; and
(b) in respect of any Claim, Substantiated Claim or claim under the Tax Covenant notified to the Warrantors after the end of the Earn-out Period, $500,000.
7.3 The Seller Warrantors shall not be liable for a Claim unless:
6.4.1 unless the amount of a Substantiated Claimthe Warrantors' liability in respect of such Claim (together with any connected Claims), or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 when aggregated with the amount of Warrantors' liability for all Substantiated Claims that are not excluded and all claims under clause 6.4.1 when taken togetherthe Tax Covenant, exceeds £10,000$50,000 or individually exceeds $25,000, in which case the Warrantors shall be liable for the whole amount claimed (and not just the amount by which either such threshold is exceeded). For the limit in purposes of this clause 6.4.2 7, a Claim is exceeded) is recoverable by connected with another Claim if the BuyerClaims arise from the same event or set of circumstances, or relate to the same subject matter.
6.5 7.4 The Seller is Warrantors shall not be liable for a Claim unless notice in writing summarising the nature of the Claim (in so far as it is known to EFactor) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of EFactor to the Seller Representative or the relevant Warrantors:
(a) in the case of a claim made under the Tax Warranties, on or before the seventh anniversary of Completion; or
(b) in any other case, prior to the expiry of the period of 2 years commencing on the Completion Date.
7.5 The Warrantors shall not be liable for a Claim or a claim under the Tax Covenant to the extent that the ClaimClaim or claim under the Tax Covenant:
6.5.1 (a) relates to matters Disclosed; or
6.5.2 (b) relates to any matter specifically provided against, reserved for or otherwise specifically taken into account and fully provided for in the Accounts.
6.6 The Seller is not liable for a Claim unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as far as it is known to the Buyer and the amount claimed is within the period of 6 months beginning with the Completion Date
6.7 7.6 Nothing in this clause 7 or Schedule 6 applies to exclude or limit the liability of the Warrantors:
(a) to the extent that a Claim that or a claim under the Tax Covenant arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by any of the SellerSellers or Warrantors; or
(b) in respect of a breach of any of the warranties in paragraphs 1.1 to 1.5 (inclusive), its agents 2.1, 2.2, 2.4 or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES2.5 of Part 1 of Schedule 5.
7.1 The Buyer 7.7 In the case of:
(a) a Claim against all of the Sellers or all of the Warrantors; or
(b) a claim under the Tax Covenant; EFactor agrees to procure that the Property Leases are properly assigned at Sellers’ or Warrantors’ liability for each such claim shall first be satisfied by reducing the Seller’s cost to TRM Earn-out Amount (ATMas defined in Schedule 4) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion by the Seller shall use all reasonable endeavours to obtain the grant amount of any reversioner’s licences necessary to enable the Property Leases to be assigned such liability. If and to assist with the obtaining of extent that the total liability for all such licences claims exceeds the Seller Earn-out Amount, the remaining amount shall procure that ATM shall supply such information and references as may be required satisfied by the reversioner pursuant Manager Entities and A▇▇▇▇▇ ▇▇ ▇▇▇▇▇ only, subject to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the other provisions of this paragraph clause 7.
7.8 The Warrantors shall apply from and including Completion not be liable for any Claim to the assignment extent that the Claim would arise or the amount of the Property Leases to ATMClaim would be increased after the date of this Agreement as a result of:
7.3.1 (a) the Buyer will procure that ATM may enter enactment of any legislation with retrospective effect; or
(b) a judgement or change in the property demised by the Property Leases and occupy it as licensee interpretation or application of any law or of any ruling or practice of any administrative
7.9 The amount of the Company and the Company shall hold the Property Leases upon trust Warrantors’ liability for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment Claim shall be completed and the Buyer shall procure that the Company shall assign reduced by any sum which is recovered (whether by way of insurance, indemnification or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred otherwise) by EFactor in respect of the Property Leases loss or damage suffered by reason of the relevant breach, less the amount of any reasonable costs and expenses incurred in obtaining payment of that sum and of any Tax for which EFactor may be liable by reason of its receipt of that sum and if the Warrantors have paid to EFactor any amount in respect of the transfer Claim before the recovery of that sum, EFactor shall repay to them, or procure the repayment to them of, the amount by which its liability is so reduced.
7.10 EFactor shall not be entitled to recover damages or otherwise obtain reimbursement or restitution more than once in respect of the Employees same loss.
7.11 If any matter which will or any might give rise to a Claim comes to the notice of EFactor, the following provisions shall apply:
(a) EFactor shall as soon as reasonably possible notify the Warrantors in writing of the Excluded Assets pursuant matter and make available to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against them all claims, costs information and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed documents in the Disclosure Letterpossession or under the control of EFactor in so far as they relate to that matter; and
(b) EFactor shall not make any admission of liability or take any other action (except as required by law) in connection with the matter without the previous written consent of the Warrantors (which shall not be unreasonably delayed or withheld) subject to such consent having been received within 5 business days of notification by EFactor.
7.12 EFactor shall in accordance with its obligations at comment law take steps to mitigate its loss which in the absence of mitigation might give rise to a liability in respect of a Claim.
Appears in 1 contract
Limitations on Claims. 6.1 The definitions and rules of interpretation in 7.1 Save as provided under Clause 7.8, this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause Clause 7 limits the liability of the Seller in relation to any Claim.
6.3 7.2 The aggregate liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000an amount equal to 30% of the Purchase Price, with the exception of any Claim for a breach of the Tax Warranties for which the aggregate liability of the Seller shall amount to 50% of the Purchase Price
6.4 7.3 The Seller shall not be liable for a Claim unless:
6.4.1 7.3.1 the Seller’s liability in respect of such Claim (together with any connected Claims) exceeds EUR 5,000; and
7.3.2 the amount of a Substantiated the Seller’s liability in respect of such Claim, either individually or of a series of connected Substantiated when aggregated with the Seller’s liability for all other Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not (other than those excluded under clause 6.4.1 when taken together, Clause 7.3.1) exceeds £10,000EUR 50,000, in which case the Seller shall be liable for the whole amount (of the Claim and not just the amount by which above the limit threshold specified in this clause 6.4.2 is exceeded) is recoverable by the BuyerClause 7.3.
6.5 7.4 The Seller is shall not be liable for any a Claim if and to the extent that the Claim:
6.5.1 relates to matters 7.4.1 arises from facts, events or circumstances that have been Disclosed; or
6.5.2 7.4.2 relates to any a matter specifically and fully provided for in the Accounts.
6.6 7.5 The Seller is shall not be liable for a Claim (other than a Claim pursuant to the Tax Warranties) unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as (in so far as it is known to the Buyer and Buyer) and, as far as is reasonably practicable, the amount claimed claimed, has been given by or on behalf of the Buyer to the Seller in the period of 2 years commencing on the Closing Date. Any Claim for a breach of the Tax Warranties shall lapse unless it has been notified by or on behalf of the Buyer to the Seller within 3 months after the expiry, under the applicable legal statute of limitation, of the right of any relevant Tax Authority to make or issue a claim against the Company.
7.6 Where notice of a Claim (other than a Claim pursuant to the Tax Warranties) is given under Clause 7.5 but legal proceedings have not been issued and served within the period of 6 12 months (beginning with the Completion Dateday on which the notice is deemed to be received), such Claim shall be deemed to be withdrawn.
6.7 7.7 The Buyer is not entitled to recover damages or otherwise obtain restitution more than once in respect of the same Losses.
7.8 Nothing in this clause 6 Clause 7 or Schedule 5 applies to exclude or limit the liability of the Seller:
7.8.1 If and to the extent that a Claim that or a claim under the Tax Covenant arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment deceit (bedrog) by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASESadvisers; or
7.8.2 for any Claim made under the Warranties in paragraph 1.1, COVENANT & INDEMNITIESparagraph 1.2, paragraph 2.1, paragraph 2.2, or paragraph 2.3 of Part 1 of Schedule 2 (the “Fundamental Warranties”).
7.1 7.9 Recovery from insurers or other third parties: The Seller shall have no obligation to reimburse the Buyer agrees nor the Company of any Claim if and to procure the extent that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company Losses in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 which the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and Claim is made are actually recovered from any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and it being understood that the Buyer shall and shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM make all commercially reasonable efforts with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant a view to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claimsrecovery of any (part of any) Losses from any third party, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Letterinsofar this is permitted by applicable laws.
Appears in 1 contract
Limitations on Claims. 6.1 The definitions and rules of interpretation in this clause apply in this Agreement “Claim” a claim for breach of In no event shall Seller have any of the Warranties “Substantiated Claim” a Claim obligation to indemnify Buyer in respect of which liability is admitted Indemnified Losses in excess of an amount equal to $1,625,000 plus 25% of the NSR Royalty actually paid by the party against whom such Claim is broughtBuyer to Seller hereunder, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise except for indemnity arising out of the occurrence any material breach of the same event or relate to the same subject matter
6.2 This clause limits the liability Sections 3.1, 3.3, 3.4 and 3.10 of the Seller this Agreement, in relation to any Claim
6.3 The liability of the Seller for all Substantiated Claims when taken together shall not exceed £350,000
6.4 The which case Seller shall not be liable required to pay to Buyer as Indemnification hereunder more than the aggregate amounts of Purchase Price paid to Seller in cash, and provided further that Buyer shall have the right to set-off any additional amounts for a Claim unless:
6.4.1 which indemnification may be properly paid to Buyer hereunder from any payments owing or to become owed to Seller pursuant to the amount NSR Royalty Deed. Notwithstanding anything in this Agreement to the contrary, Seller shall have no obligations or liabilities under this Agreement: (a) unless Buyer has given written notice to Seller setting out specific details of a Substantiated Claimthe Indemnified Losses as soon as reasonably practicable after Buyer becomes aware of the facts, matters or circumstances on which the claim is based, and in any event by the expiration of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,000the relevant representations and warranties as provided in Section 8.1; and
6.4.2 (b) unless and until the amount of all Substantiated Claims Indemnified Losses totals at least Seventy Five Thousand Dollars ($75,000) in the aggregate, provided however, that are materiality limitations shall not excluded under clause 6.4.1 be taken into consideration when taken together, exceeds £10,000, in which case calculating the whole aggregate amount of Indemnified Losses for purposes of this Section 9.2(b); (and not just the amount by which the limit in this clause 6.4.2 is exceededc) is recoverable by the Buyer
6.5 The Seller is not liable for any Claim to the extent that the Claim:
6.5.1 relates to matters Disclosed; or
6.5.2 relates to any matter specifically and fully provided for in the Accounts
6.6 The Seller is not liable for a Claim unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as far as it is known to the Buyer and the amount claimed is within the period of 6 months beginning with the Completion Date
6.7 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred compensation in respect of the Property Leases and in respect of the transfer of the Employees Indemnified Loss: (i) is recovered by Buyer or any Affiliate under or out of any insurance or indemnity agreement; or (ii) would have been recoverable by Buyer or any Affiliate under or out of any insurance or indemnity by reasonable efforts to pursue the Excluded Assets pursuant to Indemnified Loss under such insurance or indemnity; (e) if the ATM Transfer Agreement
7.6 The Seller agrees to indemnify Indemnified Loss arises solely from any change after the Buyer against all claimsdate of this Agreement in any applicable Law (whether or not with any retrospective effect); (f) for any indirect, costs and liabilities indirectly special, consequential, nominal or directly incurred as tax penalties incidental damages or charges for late returns as specifically Disclosed in the Disclosure Letterlost profits.
Appears in 1 contract
Sources: Asset Purchase Agreement
Limitations on Claims. 6.1 The definitions and rules 8.1 Save as provided in clause 8.18, the provisions of interpretation in this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause limits 8 limit the liability of the Seller Warrantors in relation to any Claim, any Tax Warranty Claim and (where specifically provided) any Tax Covenant Claim and any claim under clause 10.
6.3 8.2 The aggregate liability of the Seller Warrantors for all Substantiated Claims when taken together and all Tax Warranty Claims, Tax Covenant Claims and claims under clause 10 shall not exceed £350,000an amount equal to US$3,000,000 (three million US dollars) in pounds sterling (calculated by reference to the Applicable Exchange Rate).
6.4 8.3 Subject to clause 8.4 below, the maximum liability of each Warrantor under or in connection with this agreement in respect of all Claims, Tax Warranty Claims, Tax Covenant Claims or claims under clause 10 shall not exceed the proportion of that claim set out opposite his, her or its name in the table set out below:
8.4 The Seller maximum aggregate liability of each Warrantor under or in connection with this agreement in respect of all Claims, Tax Warranty Claims, Tax Covenant Claims or claims under clause 10 shall not exceed the amount set out opposite his, her or its name in the table set out below:
8.5 The Warrantors shall not be liable for a Claim unless:
6.4.1 the amount of (other than a Substantiated Tax Warranty Claim, ) or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 the amount of all Substantiated Claims that are not excluded any claim under clause 6.4.1 when taken together, exceeds £10,000, in which case the whole amount (and not just the amount by which the limit in this clause 6.4.2 is exceeded) is recoverable by the Buyer
6.5 The Seller is not liable for any Claim to the extent that the Claim:
6.5.1 relates to matters Disclosed; or
6.5.2 relates to any matter specifically and fully provided for in the Accounts
6.6 The Seller is not liable for a Claim 10 unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as (in so far as it is known to the Buyer and Buyer) and, as far as is reasonably practicable, the amount claimed claimed, has been given by or on behalf of the Buyer, as soon as is within reasonably practicable after the Buyer becomes aware of the matter or circumstance giving rise to the Claim (provided that, subject to the time limit set out below, failure to provide any such notice shall not prevent the Buyer from bringing a Claim on the basis of such matter or circumstance) and, in any event, to the Warrantors, prior to the expiry of the period of 6 months beginning with two years commencing on the Completion Date.
6.7 Nothing 8.6 The Warrantors shall not be liable for a Tax Warranty Claim or a Tax Covenant Claim unless notice in this clause 6 applies writing summarising the nature of the Tax Warranty Claim or the Tax Covenant Claim (in so far as it is known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Warrantors (provided that, subject to the time limit set out below, failure to provide any such notice shall not prevent the Buyer from bringing a Tax Warranty Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by Tax Covenant Claim on the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining basis of such licences matter or circumstance), prior to the Seller shall procure that ATM shall supply such information and references as may be required by expiry of the reversioner period of seven years commencing on the Completion Date.
8.7 The liability of the Warrantors specified in a notice given pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents clauses 8.5 and observe 8.6 above shall absolutely cease and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company determine if proceedings in respect of any Claim, Tax Warranty Claim or Tax Covenant Claim shall not have been issued and served on the Warrantors, or the amount payable agreed between the parties, within 12 months after the notice referred to in clauses 8.5 and 8.6 is served.
8.8 The Warrantors shall not be liable for any Claim, Tax Warranty Claim or Tax Covenant Claim (except for Tax Covenant Claims under paragraphs 2.3, 2.4 and 2.5 of Schedule 5) unless and until (a) the Warrantors’ liability in respect of such claim exceeds £10,000 and (b) the aggregate liability of the Warrantors for all ratessuch claims exceeds £100,000, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 in which case the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and Warrantors shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than be liable for the payment entire amount of rents such claims and any other sums and against alienation without prior consent) on not just the part excess. For the purposes of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breachthis clause 8.8, non-observance, or non-performance a number of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses claims arising out of the same subject matter shall be aggregated to form a single claim.
8.9 The Warrantors shall not be liable for a Claim or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached a Tax Warranty Claim to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure extent that the Company shall assign Claim or transfer as appropriate the Property Leases Tax Warranty Claim: 8.9.1 relates to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Lettermatters which have been Disclosed;
Appears in 1 contract
Limitations on Claims. 6.1 The definitions and rules of interpretation 7.1 Save as provided in clause 7.6, this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause 7 limits the liability of the Seller in relation to any Claim and (where specifically provided) any Tax Claim or Indemnity Claim.
6.3 7.2 The aggregate liability of the Seller for all Substantiated Claims when taken together and all Tax Claims shall not exceed £350,000an amount equal to the Consideration paid.
6.4 7.3 The Seller shall not be liable for a Claim or Tax Claim unless:
6.4.1 (a) the Seller’s liability in respect of that Claim or Tax Claim (together with any connected Claims or Tax Claims) exceeds £2,500.00; and,
(b) the amount of a Substantiated the Seller’s liability in respect of that Claim or Tax Claim, either individually or of a series of connected Substantiated when aggregated with the Seller’s liability for all other Claims of which that Substantiated Claim is one, exceeds £1,000; and
6.4.2 the amount of all Substantiated and/or Tax Claims that are not (other than those excluded under clause 6.4.1 when taken together, 7.3(a)) exceeds £10,00010,000.00, in which case the Seller shall be liable for the whole amount (of the Claim and/or Tax Claim and not just the amount by which above the limit threshold specified in this clause 6.4.2 7.3(b). For the purposes of this clause 7.3, a Claim or Tax Claim is exceeded) is recoverable by connected with another Claim or Tax Claim if the BuyerClaims or Tax Claims arise from the same facts, events or circumstances.
6.5 7.4 The Seller is shall not liable for any Claim to the extent that the Claim:
6.5.1 relates to matters Disclosed; or
6.5.2 relates to any matter specifically and fully provided for in the Accounts
6.6 The Seller is not be liable for a Claim or an Indemnity Claim unless the Buyer has given the Seller notice in writing of the Claim, summarising the nature of the Claim as or Indemnity Claim (in so far as it is known to the Buyer and Buyer) giving reasonably full details of the matter in respect of which the Claim or Indemnity Claim is made, the nature of the breach and, as far as is reasonably practicable, the amount claimed is claimed, has been given by or on behalf of the Buyer to the Seller:
(a) in the case of a Claim for breach of the Tax Warranties, on or before the seventh anniversary of Completion; or
(b) in any other case, within the period of 6 months beginning with 2 years commencing on the Completion Date
6.7 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee.
7.5 The Seller agrees shall not be liable for a Claim if and to indemnify the extent that the Claim arises from facts, events or circumstances that have been Disclosed.
7.6 If any Claim or Tax Claim arises by reason of a liability that is future, contingent and/or unquantifiable:
(a) the Seller shall not be under any obligation to make any payment for such Claim or Tax Claim until such time as that liability becomes an actual liability, or is capable of being quantified, before the expiry of the relevant time period set out in clause 7.4; and
(b) the Seller shall not be liable for any such contingent and/or unquantifiable Claim or Tax Claim unless proceedings have been both issued and validly served on the Seller within nine months from the date on which the liability becomes an actual liability or has become capable of being quantified.
7.7 Notwithstanding anything in this agreement, the Seller shall not be liable to the Buyer against all claimsfor any loss of profit, costs and liabilities indirectly or directly incurred indirect or consequential loss, whether actual or prospective in respect of any Claim.
7.8 The Seller shall not be liable to the Property Leases and Buyer in respect of any Claim or Tax Claim, if and to the transfer extent that such Claim or Tax Claim in question or the breach on which such Claim or Tax Claim is based:
(a) arises after a change in the accounting or taxation policies of the Employees Company which has effect after Completion, unless such change is required to comply with law or any generally accepted accounting principles;
(b) would not have arisen but for any act, omission, transaction or arrangement carried out:
(i) at the request of, or with the consent of, the Buyer before Completion; or
(ii) voluntarily by the Company (or their respective directors, officers, employees, agents or advisers) after Completion otherwise than in the ordinary and proper course of conducting the Business as carried on immediately before Completion;
(c) relates to any loss for which the Buyer is actually and fully indemnified by insurance in force on or after the date of this agreement; or
(d) relates to any matter which is specifically allowed, provided for, reserved or reflected in, or the amount of the Excluded Assets pursuant to loss or damage the ATM Transfer Agreement
7.6 The Seller agrees to indemnify subject of the Buyer against all claimsClaim or Tax Claim is taken into account in, costs and liabilities indirectly the Accounts or directly incurred as tax penalties or charges for late returns as specifically Disclosed the Management Accounts (including in the Disclosure Letternotes to them).
Appears in 1 contract
Limitations on Claims. 6.1 8.1 The definitions and rules of interpretation in this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “agreement. Substantiated Claim” : a Relevant Claim in respect of which liability is admitted by the party against whom such Relevant Claim is brought, or which has been adjudicated on by a Court court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal appeal. A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter.
6.2 This clause limits the liability of the Seller in relation to any Claim
6.3 8.2 The liability of the Seller for all Substantiated Claims and any amounts due under clause 8.4 when taken together shall not exceed £350,000the Consideration.
6.4 8.3 The Seller shall not be liable for a Relevant Claim unless:
6.4.1 8.3.1 the amount of a Substantiated Claim, or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds £1,000; and$ 2,000;
6.4.2 8.3.2 the amount of all Substantiated Claims that are not excluded under clause 6.4.1 8.3.1 when taken together, together exceeds £10,000, $ 10,000 in which case the whole amount (and not just the amount by which the limit in this that clause 6.4.2 8.3.2 is exceeded) is recoverable by the BuyerPurchaser.
6.5 8.4 The Seller shall indemnify the Purchaser against each reasonable cost which the Purchaser may properly incur whether before or after the start of an action in connection with:
8.4.1 the settlement of a claim against the Seller in respect of a breach or an alleged breach of clause 6.1 or 6.2 or the enforcement of a settlement; and
8.4.2 legal proceedings against the Seller in respect of a breach or an alleged breach of clause 6.1 in which judgment is given for the Purchaser or the enforcement of the judgment.
8.5 The Seller shall not be liable for any Relevant Claim to the extent that the Relevant Claim relates to matters fairly and specifically disclosed in the Disclosure Letter.
8.6 The Seller shall not be liable for any Claim to the extent that the Claim:
6.5.1 relates to matters Disclosed; or
6.5.2 Claim relates to any matter specifically and fully provided for in the Accounts.
6.6 8.7 The Seller is not liable for a Relevant Claim unless the Buyer Purchaser has given the Seller notice in writing of the Relevant Claim, summarising the nature of the Relevant Claim as far as it is known to the Buyer and the amount claimed is within the period of 6 three months from the publication of the audited accounts of the Company for the year ending after Completion (unless previously satisfied, settled or withdrawn) and unless legal proceedings have been validly issued on or before the date six months after the date of the notice of the Relevant Claim.
8.8 The Seller is not liable for a Tax Claim unless the Purchaser has given the Seller notice in writing of the Tax Claim summarising the nature of the Tax Claim and the amount claimed within the period of seven years beginning with the date of Completion Date(unless previously satisfied, settled or withdrawn) and unless legal proceedings have been validly issued on or before the date six months after the date of the notice of the Tax Claim.
6.7 8.9 Nothing in this clause 6 8 or Schedule 5 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIESadvisers.
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph 8.10 Schedule 5 shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure LetterClaims under this agreement.
Appears in 1 contract
Sources: Share Purchase Agreement
Limitations on Claims. 6.1 The definitions and rules 8.1 Save as provided in clause 8.17, the provisions of interpretation in this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction 8 and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter
6.2 This clause limits Schedule 6 limit the liability of the Seller Warrantors in relation to any Claim.
6.3 8.2 The Warrantors shall be jointly and severally liable in respect of any Claims to the extent that the liability of the Warrantors for all Resolved Claims is less than or equal to the Escrow Amount, but where such liability exceeds the Escrow Amount, and the Realise Escrow Amount has been exhausted (whether pursuant to the terms of clause 4 or any contribution arrangements made between the Warrantors), then ▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ only shall be jointly and severally liable in respect of any Claims and the liability of each of them in relation to each individual Claim shall be his Due Proportion of that Claim.
8.3 The liability of the Seller each Warrantor for all Substantiated Resolved Claims when taken together shall not exceed £350,000
6.4 The Seller an amount equal to that part of the Purchase Price actually received by him save in the case of Realise Capital Partners LLP where its liability for all Resolved Claims shall not exceed an amount equal to the Realise Escrow Amount. For the purposes of this clause 8, and for the avoidance of doubt, the part of the Purchase Price actually received by a Warrantor includes the value of the Consideration Shares issued to him.
8.4 The Warrantors’ liability in respect of any Resolved Claims shall be liable for a Claim unlesssatisfied:
6.4.1 8.4.1 first by the Escrow Amount; and
8.4.2 thereafter by the payment of cash or the forfeiture by the relevant Warrantor of Consideration Shares in such priority and proportion as the Buyer shall direct in writing.
8.5 In the event that the Buyer elects pursuant to clause 8.4.2 to satisfy some or all of a Warrantor’s liability in respect of a Resolved Claim through the forfeiture of any of that Warrantor’s Consideration Shares, then:-
8.5.1 the lock up provisions set out in paragraph 1 of Schedule 10 shall be disapplied to the Consideration Shares to be forfeited, subject to any constraints on such forfeiture at law; and
8.5.2 the value attributable to such Consideration Shares, for the purpose of calculating how many Consideration Shares should be forfeited in order to satisfy a particular liability, shall be the value attributed to them at the date of forfeiture.
8.6 The Warrantors shall not have any liability in respect of any Warranty Claim unless and until the amount that would otherwise be recoverable from them in respect of a Substantiated that Warranty Claim, or when aggregated with any other amounts so recoverable in respect of a series of connected Substantiated Claims of which that Substantiated Claim is oneother Warranty Claims, exceeds £1,000; and
6.4.2 100,000 whereupon the amount of all Substantiated Claims that are not excluded under clause 6.4.1 when taken together, exceeds £10,000, in which case Warrantors’ liability shall be for the whole amount (total amounts claimed and not just the amount by which the limit threshold in this clause 6.4.2 8.6 is exceeded) .
8.7 The Warrantors shall not be liable for a Claim unless notice in writing summarising the nature of the Claim (in so far as it is recoverable by known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Warrantors:
6.5 The Seller is not liable 8.7.1 in the case of a Tax-Related Claim, on or before the seventh anniversary of Completion; or
8.7.2 in any other case, prior to the expiry of the period of 18 months commencing on the Completion Date,
8.7.3 provided that in each case the liability for any the Claim shall cease unless the Buyer has issued and served court proceedings on both Warrantors within 9 months of the Warrantors receiving written notice of the Claim from the Buyer, save to the extent that the ClaimClaim has been otherwise disposed of by payment by the Warrantors or a settlement between the Warrantors and the Buyer.
8.8 If any Claim arises by reason of any liability of the Company which, at the time such Claim is notified to the Warrantors, is contingent:
6.5.1 8.8.1 the Warrantors shall not be under any obligation to make any payment in respect of the contingent element of such Claim unless and until such liability ceases to be contingent provided always that the Buyer shall have notified the Warrantors of any such Claim within the time limits set out in clause 8.7 above, in which case the Buyer shall be entitled to recover in respect of the contingent element of such Claim when the relevant liability ceases to be contingent; and
8.8.2 the Warrantors’ liability in respect of any such Claim shall cease unless the Buyer shall have issued and served legal proceedings on both Warrantors within 9 months of such Claim ceasing to be contingent, save to the extent that such Claim has been otherwise disposed of by payment by the Warrantors or a settlement between the Warrantors and the Buyer.
8.9 The Warrantors shall not be liable for a Warranty Claim to the extent that:
8.9.1 the Warranty Claim relates to matters Disclosed; or
6.5.2 8.9.2 the Warranty Claim relates to any matter specifically and fully provided for in the Accounts or the Management Accounts or the Completion Accounts; or
6.6 The Seller 8.9.3 the loss or damage giving rise to the Warranty Claim is recovered by the Company under a policy of insurance (provided always that the Buyer shall be able to claim from the Warrantors an amount equal to two years’ increase in premiums resulting from payment by the insurers of the loss forming the Warranty Claim); or
8.9.4 such liability arises or is increased as a result of any change or changes in legislation (primary or delegated) including without limitation any increase in rates of Tax or the introduction of any changes or new form of Tax or in the practice of any Taxation Authority (in the United Kingdom or elsewhere) occurring after Completion whether or not liable with retrospective effect; or
8.9.5 such Warranty Claim or the subject matter thereof has been or is made good or is otherwise compensated for (otherwise than by the Buyer or any member of the Buyer’s Group); or
8.9.6 the liability arises or is increased as a Claim unless result of any voluntary act or omission of the Buyer or the Company after Completion done or suffered outside the ordinary course of business and other than pursuant to a legally binding obligation entered into by the Company before Completion and where the Buyer knew that such voluntary act or omission would give rise to the liability or increase it.
8.10 Nothing in this clause 8 shall in any way restrict or limit the general obligation at law of the Buyer to mitigate any loss or damage which it may suffer in consequence of any event giving rise to a Warranty Claim.
8.11 If the Buyer has given both a Covenant Claim and a Warranty Claim it may make a claim under either or both but any payment made by the Seller notice Warrantors under the Tax Covenant shall be taken into account in assessing the Buyer’s loss under the Warranties and any payment made by the Warrantors under the Warranties shall be taken into account in assessing the Buyer’s loss under the Tax Covenant.
8.12 To avoid doubt, the Buyer shall not be entitled to recover twice in respect of the same Claim.
8.13 If any Warrantor pays the Buyer or any member of the Buyer’s Group a sum to settle or discharge a Warranty Claim (excluding a claim under the Tax Warranties) and the Buyer or any member of the Buyer’s Group subsequently recovers whether by payment, discount, credit, relief or otherwise from any third party a sum which is referable to such Warranty Claim then:
8.13.1 either the Buyer shall (or shall procure that the relevant member of the Buyer’s Group shall) repay the Warrantor immediately the amount recovered from the third party less any reasonable costs and expenses incurred in recovering the same; or
8.13.2 if the figure resulting under clause 8.13.1 above is greater than the amount paid by the Warrantor to settle or discharge the relevant Claim, then the Buyer is only obliged to repay to the Warrantor such amount as is equivalent to the sum paid by the Warrantor in settlement or discharge of that Warranty Claim.
8.14 If the Buyer or the relevant member of the Buyer’s Group becomes aware that matters have arisen which will or are likely to give rise to a Warranty Claim (excluding a claim under the Tax Warranties), the Buyer shall have conduct of such potential Warranty Claim subject to the terms of clause 8.15.
8.15 The Buyer shall (or shall procure that the relevant member of the Buyer’s Group shall):
8.15.1 as soon as practicable notify the Warrantors in writing of the Claim, summarising the nature potential Warranty Claim and of the Claim as far as it is known matters which will or are likely to give rise to such Warranty Claim;
8.15.2 not make any admission of liability, agreement or compromise with any person, body or authority in relation to the potential Warranty Claim without appropriate consultation with the Warrantors;
8.15.3 at all times disclose in writing to the Warrantors all material information and documents relating to the potential Warranty Claim or the matters which will or are likely to give rise to the potential Warranty Claim;
8.15.4 if requested by the Warrantors, give them and their professional advisers reasonable access to:
(a) the personnel of the Buyer and/or the relevant member of the Buyer’s Group in order to interview the personnel; and
(b) any relevant premises, chattels, accounts, documents and the amount claimed is records within the period power, possession or control of 6 months beginning the Buyer and/or the relevant member of the Buyer’s Group in order to, at the Warrantors’ own expense, examine and photograph the premises and chattels and to examine, photograph and take copies of the accounts, documents and records; and
8.15.5 only take action to avoid, resist, contest, defend, compromise or remedy the potential Warranty Claim or the matters which will or are likely to give rise to such Warranty Claim after appropriate consultation with the Completion DateWarrantors.
6.7 8.16 Any payment made by any Warrantor in respect of any Claim or any Seller in respect of any claim under this Agreement will be deemed to be a reduction in the Purchase Price payable to that Seller in accordance with clause 3 of this agreement.
8.17 Nothing in this clause 6 8 applies to exclude or limit the liability of the Warrantors:
8.17.1 to the extent that a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIESWarrantors; or
7.1 The Buyer agrees to procure that the Property Leases are properly assigned at the Seller’s cost to TRM (ATM) Limited (“ATM”) as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases to be assigned and to assist with the obtaining of such licences the Seller shall procure that ATM shall supply such information and references as may be required by the reversioner pursuant to the Property Leases and, where required by the Property Leases, the Seller will procure that ATM will covenant direct with the reversioner to pay the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company 8.17.2 in respect of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings a breach of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in Title Warranties.
8.18 The Warrantors shall not plead the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred Limitation ▇▇▇ ▇▇▇▇ in respect of any claims made under the Property Leases and in respect of Tax Warranties or Tax Covenant up to seven years after the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure LetterCompletion Date.
Appears in 1 contract
Sources: Share Purchase Agreement
Limitations on Claims. 6.1 The definitions and rules of interpretation in this clause apply in this Agreement “Claim” a claim for breach of any of the Warranties “Substantiated Claim” a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal 9.1 A Claim is connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter.
6.2 9.2 This clause limits the liability of the Seller Sellers in relation to any Claimclaims under this Agreement.
6.3 The 9.3 Subject as provided in clause 11.6, the liability of the of:
(a) each Seller (whether in his capacity as Seller, Covenantor or Warrantor) for all Substantiated Claims claims pursuant to the terms of this Agreement when taken together shall not exceed £350,000that Seller’s Seller Proportion of the Purchase Price (calculated, in respect of any particular such claim as though that claim had not reduced the Purchase Price as contemplated by clause 7.3);
6.4 (b) subject always to clause 9.3(a), each Seller for any individual claim pursuant to the terms of clause:
(i) 7.1(a) of this Agreement shall not exceed that Seller’s Seller Proportion in respect of such claim; and
(ii) 7.1(b) of this Agreement shall not exceed that Seller’s Covenantor Proportion in respect of such claim;
(c) subject always to clause 9.3(a), each Warrantor for any individual Claim pursuant to the terms of clause 8.3 and any individual Tax Claim shall not:
(i) in the case of a Claim where a payment is received by the Buyer in respect of such Claim (and to the extent of such payment) from the Escrow Account, exceed that Warrantor’s Seller Proportion in respect of such Claim or Tax Claim; and
(ii) in the case of a Claim where no payment is received by the Buyer in respect of such Claim from the Escrow Account or, to the extent of any balance where any such payment is insufficient to satisfy the liability in respect of such Claim in full, exceed that Warrantor’s Warrantor Proportion in respect of such Claim or Tax Claim.
9.4 The Seller Sellers shall not be liable for a Claim unless:
6.4.1 (a) the amount of a Substantiated Claim, or of a series of connected Substantiated Claims of which that Substantiated Claim is oneone (in each case excluding the costs and interest associated with such Claim), exceeds £1,000; and635;
6.4.2 (b) the amount of all Substantiated Claims that are not excluded under clause 6.4.1 when taken together, (excluding the costs and interest associated with such Claim) exceeds £10,000, 160,000 in which case the whole amount (and not just the amount by which the limit in this clause 6.4.2 9.4(b) is exceeded) is recoverable by the BuyerBuyer provided that this clause 9.4 shall not apply to any claim under the Tax Indemnity or under any of the Warranties expressed in paragraphs 1 and 2.1 of Schedule 4 below.
6.5 The Seller is 9.5 No claim shall be made by the Buyer against the Sellers and the Sellers are not liable for any Claim other than a Tax Claim (Tax Claims shall for the avoidance of doubt be subject to the provisions of clause 13):
(a) to the extent that allowance, provision or reserve was made in the ClaimAccounts or Completion Accounts in respect of the matter giving rise to the Claim or otherwise taken into account in their preparation; or
(b) the facts and circumstances giving rise to the Claim were:
6.5.1 relates to matters (i) Disclosed; or
6.5.2 relates to any matter specifically and fully provided for (ii) disclosed in this Agreement or done in the Accountsproper execution and performance of this Agreement; or
6.6 (c) to the extent that it occurs or liability is increased as a result of:
(i) an act, omission or transaction done, made or carried out by the Buyer or the Company after Completion outside the ordinary course of the Company’s business save where such act, omission or transaction was required by law or was pursuant to a legally binding commitment of the Company created on or before Completion and save where such act, omission or transaction was carried out by one or more Sellers on the Company’s behalf acting outside the scope of authority of the relevant Seller(s); or
(ii) a change in the accounting reference date of the Company from 31 July; or
(iii) a change in the accounting or Taxation policies or practices of the Company (including the method of submitting Taxation returns and the treatment of timing differences for accounting or Taxation purposes) introduced or having effect after Completion (except where the change is necessary as a result of incorrect policies having been adopted by the Company prior to Completion); or
(iv) any legislation not in force at the date of this Agreement or any change of law or administrative practice (including, in each case, in relation to Taxation) which comes into force after the date of this Agreement; or
(v) any winding up or cessation after Completion of any trade or business carried on by the Company save where such winding up or cessation is caused by the subject matter of one or more claims under the Warranties and/or the Tax Covenant; or
(vi) the failure of the Buyer to comply with its obligations under this clause 9; or
(d) which is contingent only unless and until such contingent liability becomes an actual liability and is due and payable; or
(e) if and to the extent that:
(i) the loss in respect of which the Claim is made is recovered under a policy of insurance; or
(ii) the Company or the Buyer has recovered from any third party any sum in respect of loss, damage or liability in respect of which the claim is made in each case after deducting from such insurance recovery or sum all reasonable and properly incurred costs associated with its recovery, including without limitation any Taxation in respect of it).
9.6 The Seller is Sellers are not liable for a Claim unless the Buyer has given the Seller Sellers’ Representative notice in writing of the Claim, summarising in reasonable detail the nature of the Claim as far as it is known to the Buyer and the amount claimed is claimed:
(a) in the case of a Tax Claim, within the period of 6 months five years beginning with the Completion Date (other than claims arising out of the deliberate or careless conduct of the Company);
(b) in the case of a Tax Claim which arises out of the deliberate or careless conduct of the Company, within the period of seven years beginning with the Completion Date; and
6.7 Nothing (c) in this any other case, on or before 31 March 2015.
9.7 Subject to clause 6 applies 13.20, if the Buyer shall become aware of any fact or circumstance which is likely to give rise to a liability of any of the Sellers under the Warranties (and for this purpose the limitations on liability at clause 9.4 shall be ignored) the Buyer shall as soon as reasonably practicable (and in any event within 15 Business Days of becoming so aware) give written notice of it to the Sellers’ Representative, specifying (in reasonable detail with supporting evidence) the event, matter or default which gives rise to the Claim and the Buyer’s best estimate of the amount to be claimed and after that arises or is delayed as a result shall keep the Sellers’ Representative informed of dishonesty, fraud, wilful misconduct or wilful concealment by all material developments and communications relating to it and the Seller, its agents or advisers 7 ASSIGNMENT OF PROPERTY LEASES, COVENANT & INDEMNITIES
7.1 The Buyer agrees to procure that give the Property Leases Sellers’ Representative and his professional advisers reasonable access at any reasonable times and on reasonable advance notice to the premises and personnel of the Buyer and the Company and to any chattels, accounts, documents and records which are properly assigned at relevant to such claim and are within the Seller’s cost to TRM (ATM) Limited power or control of the Buyer or the Company (“ATMRelevant Assets”) so as soon as possible following Completion
7.2 Prior to Completion the Seller shall use all reasonable endeavours to obtain the grant of any reversioner’s licences necessary to enable the Property Leases Sellers’ Representative and his professional advisers to be assigned examine such premises, chattels, accounts, documents and records and to assist with take copies at their own expense Provided always that the obtaining of access to personnel and Relevant Assets granted to the Sellers’ Representative and his professional advisers under this clause 9.7 shall be subject to such licences the Seller shall procure that ATM shall supply such information reasonable conditions concerning confidentiality and references timing as may be required by the reversioner pursuant Buyer.
9.8 Any Claim that may have been made shall (if it has not been previously satisfied, settled or withdrawn) be deemed to have been waived or withdrawn on the Property Leases and, where required by expiration of 9 months after the Property Leases, latest of:
(a) the Seller will procure that ATM will covenant direct with date it was notified under clause 9.6;
(b) the reversioner to pay date on which the rents and observe and perform the covenants contained in the Property Leases
7.3 Where the reversioner’s licence is required to enable the Property Leases to be assigned but such licence is not obtained on or before Completion the provisions of this paragraph shall apply from and including Completion to the assignment of the Property Leases to ATM
7.3.1 the Buyer will procure that ATM may enter the property demised by the Property Leases and occupy it as licensee of the Company and the Company shall hold the Property Leases upon trust for the ATM
7.3.2 the Seller will procure that ATM will pay for and reimburse the Company in respect aggregate amount of all rates, water rates, insurance premiums, telephone, electricity and gas charges and other outgoings of an annual or recurring nature (apportioned on a day to day basis)
7.3.3 single claims exceeds the Seller will procure that ATM will pay to the Company amounts equal to the rents reserved by the Property Leases as and when the rents fall due pursuant to the Property Leases and any other sum or sums payable thereunder and shall act or conduct itself in such a manner that the covenants, obligations, conditions and stipulations (other than for the payment of rents and any other sums and against alienation without prior consent) on the part of the tenant contained in the Property Leases are fully observed and performed and shall indemnify the Company against any breach, non-observance, or non-performance of those covenants, obligations, conditions and stipulations (save as aforesaid) and all costs, claims, damages, liabilities, expenses or losses arising amount set out of or in connection thereto
7.3.4 the Seller shall procure that ATM shall bear all third party, public liability and employer’s liability risks attached to the occupation and use of the Property Leases and shall indemnify the Company against them
7.4 Forthwith upon the grant of the reversioner’s licence to the assignment of the Property Leases such assignment shall be completed and the Buyer shall procure that the Company shall assign or transfer as appropriate the Property Leases to ATM with full title guarantee
7.5 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred in respect of the Property Leases and in respect of the transfer of the Employees or any of the Excluded Assets pursuant to the ATM Transfer Agreement
7.6 The Seller agrees to indemnify the Buyer against all claims, costs and liabilities indirectly or directly incurred as tax penalties or charges for late returns as specifically Disclosed in the Disclosure Letterat clause 9.4
Appears in 1 contract
Sources: Share Purchase Agreement (Columbia Laboratories Inc)