Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors: (a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007. (b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess). (c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than: (i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion; (ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares. (d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered. (e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed. (f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position. (g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim. (h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by: (i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement; (ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or (iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice. (i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors. (j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by: (i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority; (ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused. (k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 2 contracts
Sources: Subscription and Shareholders’ Agreement, Subscription and Shareholders' Agreement (WPT Enterprises Inc)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim Neither Co-Trustee will be liable under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or Transaction Documents, including for the delay in discovery of which is) the consequence of fraudfollowing actions, or dishonesty on the part of the Warrantors:
except (a) The rights of the Investors for its own willful misconduct, bad faith or negligence (except for errors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claimjudgment) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall if a representation or warranty made by it in Section 6.6 is not be liable in respect of any Claim under the Warranties unless the total cumulative liability true and correct as of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more thanClosing Date:
(i) in respect neither Co-Trustee will be liable for any action taken or not taken by it (A) according to the instructions of the FounderNoteholders of a majority of the Note Balance of the Controlling Class, a total the Indenture Trustee, the Depositor, the holder of 1 x his compensation received from the Company Residual Interest, the Administrator or the Servicer or (B) in good faith which it believes to be authorized or within its rights and powers under this Agreement so long as the year following Completionaction taken or not taken does not amount to negligence;
(ii) in respect neither Co-Trustee will be liable for indebtedness evidenced by or created under the Transaction Documents, including the principal of and interest on the Notes or amounts distributable to the holder of the CompanyResidual Interest;
(iii) neither Co-Trustee will be liable for (A) the validity or sufficiency of this Agreement, a total sum equal (B) the due execution of this Agreement by the Depositor, (C) the form, genuineness, sufficiency, value or validity of the Trust Property, (D) the validity or sufficiency of the other Transaction Documents, the Notes or related documents, (E) the legality, validity and enforceability of the 2021-B Exchange Note, (F) the sufficiency of the Trust Property or the ability of the Trust Property to generate the amounts necessary to make payments to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors Noteholders under the Warranties more than once in respect Indenture or distributions to the holder of the same damage suffered.
Residual Interest under this Agreement or (eG) The Warrantors shall be the accuracy of a representation or warranty made under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors a Transaction Document (other than the Companyrepresentations and warranties made by it in Section 6.6);
(iv) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them neither Co-Trustee will be liable for the purpose default or misconduct of ascertaining the position.Servicer, the Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under the Transaction Documents or for any action taken by the Indenture Trustee, the Administrator or the Servicer in the name of the Owner Trustee;
(gv) Any Claim shall neither Co-Trustee will be deemed to be withdrawn responsible or liable for special, punitive, indirect or consequential damages (including lost profit), even if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months advised of the giving of written notice likelihood of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, loss or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement damage and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date regardless of the Company made on and/or after the date form of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Planaction; or
(iiivi) any change neither Co-Trustee will be responsible or liable for a failure or delay in any accounting policy or practice the performance of the Company made on and/or after the date of its obligations under this Agreement to the extent not envisaged from or taken into account caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, acts of war, terrorism, civil or military disturbances, nuclear catastrophes, fires, floods, earthquakes, storms, hurricanes or other natural catastrophes and interruptions, loss or failures of mechanical, electronic or communication systems, pandemics or epidemics; each Co-Trustee will use reasonable efforts consistent with accepted practices in the preparation of the Business Plan save where such change is required banking industry to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim resume performance as soon as practicable under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantorscircumstances.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 2 contracts
Sources: Trust Agreement (Ford Credit Auto Lease Trust 2021-B), Trust Agreement (Ford Credit Auto Lease Trust 2021-B)
Limitations on Liability. (a) The limitations set out total aggregate liability of the Company in this clause 9.6 respect of the First Closing Warranties (including all legal and other costs and expenses) shall not apply exceed an amount equal to a the principal amount of the First Closing Amount.
(b) The total aggregate liability of the Company in respect of the Second Closing Warranties (including all legal and other costs and expenses) shall not exceed an amount equal to the principal amount of the Second Closing Amount. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
(c) No claim under this agreement may be made against the Warrantors Company in respect of: (i) the First Closing Warranties unless written notice of such claim is served on the Company giving reasonable details of the claim by no later than the date which is [***] from the First Closing Date, and (ii) the Second Closing Warranties unless written notice of such claim is served on the Company giving reasonable details of the claim by no later than the date which is [***] from the Second Closing Date.
(d) The Purchaser shall not be entitled to claim in respect of a breach of Warranty (a “Claim”) which is (the First Closing Warranties or the delay Second Closing Warranties for any indirect or consequential loss or for any loss of goodwill or loss of business, whether actual or prospective or for any punitive damages (collectively, “Special Damages”), provided that to the extent a third party has been awarded Special Damages against the Purchaser or any of its Affiliates in discovery of which is) the consequence of fraud, or dishonesty on the part connection with any breach of the Warrantors:
(a) The rights of First Closing Warranties or the Investors in respect of any Claim Second Closing Warranties, the Purchaser or its Affiliate(s), as applicable, shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from claim against the Company in the year following Completion;
for such Special Damages (ii) in respect of the Company, a total sum equal subject always to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect other provisions of the same damage sufferedthis Section 5.6).
(e) The Warrantors Purchaser shall not be under no liability under the Warranties in respect of entitled to claim that any matter to the extent that the fact, matter or circumstance giving rise causes any of the First Closing Warranties or Second Closing Warranties (as the case may be) to such liability was Disclosedbe breached if it has been fairly and specifically disclosed in the Disclosure Letter or the Data Room.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that No liability of the Company affords in respect of any breach of any First Closing Warranty or any Second Closing Warranty shall arise: (i) if 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 First Closing Date or Second Closing Date (as the case may be) or by reason of any change to HMRC’s practice announced after the First Closing Date or Second Closing Date (as the case may be); (ii) to the Investors and their advisers all reasonable opportunities and facilities extent that specific allowance, provision or reserve has been made in the Accounts or in the Management Accounts in respect of the matter to inspect all relevant books and records and which such liability relates; or (iii) to take copies the extent that such breach or claim arises as a result of them for any change after the purpose date hereof in the accounting bases or policies in accordance with which the Company values its assets or calculates its liabilities or any other change in accounting practice from the treatment or application of ascertaining the positionsame used in preparing the Accounts (save to the extent that such changes are required to correct errors or because relevant, generally accepted accounting principles have not been complied with).
(g) Any Claim The only First Closing Warranties or Second Closing Warranties (as the case may be) given in respect of Intellectual Property or rights in information (or agreements relating thereto) are those contained in paragraph 10 of Schedule 1 (Warranties), none of the other First Closing Warranties or Second Closing Warranties (as applicable) shall or shall be deemed to be withdrawn (if it has not been previously satisfiedbe, settled whether directly or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of indirectly a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable warranty in respect of any Claim under Intellectual Property and the Warranties to the extent Purchaser acknowledges and agrees that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company makes no other warranty as to Intellectual Property or one of its subsidiaries taken at the express and written request of an Investor Majority rights in information (or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedagreements relating thereto).
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 2 contracts
Sources: Convertible Loan Note Purchase Agreement (Immunocore LTD), Convertible Loan Note Purchase Agreement (Immunocore LTD)
Limitations on Liability. The limitations set out in this clause 9.6 15.6.1 After the Closing, except for an indemnity claim pursuant to Section 15.3(g) (which shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”have no time limit) which any assertion by any Buyer Indemnified Party that any Seller is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
liable (a) The rights of for the Investors in respect inaccuracy of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on representation or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
warranty, (b) The Warrantors shall not be liable in respect for the breach of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
covenant, (c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required indemnity under the terms of this Agreement Agreement, or (d) otherwise in connection with this Agreement, must be made by Buyer in writing and requested from must be given to Sellers on or before the Investors and/or a BVP Director but refusedsecond anniversary of the Closing Date. The notice shall state the facts known to Buyer that give rise to such notice in sufficient detail to allow Sellers to evaluate the assertion.
15.6.2 Except for an indemnity claim pursuant to Section 15.3(g) (kwhich shall have no deductible), none of the Buyer Indemnified Parties shall be entitled to assert any right to indemnification hereunder or to otherwise seek any damages or other remedies for or in connection with (1) If the inaccuracy of any representations of any Seller contained in this Agreement or in any other agreement, instrument, document or certificate executed or delivered in connection with this Agreement; (2) the breach of, or failure to perform or satisfy any of the covenants of any Seller set forth in this Agreement or in any other agreement, instrument, document or certificate executed or delivered in connection with this Agreement; or (3) any liabilities otherwise arising in connection with or with respect to the transactions contemplated in this Agreement until the aggregate amount of the Liabilities for such misrepresentations and breaches actually suffered by Buyer exceeds one percent of the Purchase Price, and then only to the extent of such excess.
15.6.3 No Seller shall be required to indemnify any Buyer Indemnified Parties or pay any other amount in connection with or with respect to the transactions contemplated in this Agreement in any amount exceeding in the aggregate fifty percent of the Adjusted Purchase Price.
15.6.4 The amount of any Liabilities for which any of the Buyer Indemnified Parties or Seller Indemnified Parties is entitled to indemnification or other compensation under this Agreement or in connection with or with respect to the transactions contemplated in this Agreement shall be reduced by any corresponding (1) tax benefit created or generated or (2) insurance proceeds realized or that could reasonably be expected to be realized by such party if a claim were properly pursued under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liabilityrelevant insurance arrangements.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Resaca Exploitation, Inc.), Purchase and Sale Agreement (Resaca Exploitation, Inc.)
Limitations on Liability. (i) Notwithstanding any other provision of this Tolling Services Agreement and except as set forth in Section 19(e)(ii), to the extent permitted by applicable Law, neither Party shall be liable for punitive damages or special, indirect or incidental consequential damages or loss of profit or income arising out of breach of this Tolling Services Agreement, tort (including negligence) or any other theory of liability, and each Party hereby releases the other Party from any such liability.
(ii) The limitations set out in this clause 9.6 foregoing limitation on liability for special, indirect and incidental consequential damages or loss of profit or income shall not apply to a claim under this agreement or limit any right of recovery one Party may have against the Warrantors in respect other Party under applicable Law respecting the following:
(A) Losses, damages, debts, obligations and liabilities (including defense costs) to the extent covered by the proceeds of a breach of Warranty insurance actually carried by or insuring the liable Party;
(a “Claim”B) which is (or the delay in discovery of which is) the consequence Losses, damages, debts, obligations and liabilities arising out of fraud, criminal conduct, intentional misconduct, recklessness, bad faith or dishonesty on the part of the Warrantors:gross negligence;
(aC) The rights of the Investors Developer’s obligation to pay compensation to TxDOT under this Tolling Services Agreement as set forth in respect of any Claim shall only be enforceable if the Investors give written notice Section 6; provided, however, that to the Warrantors extent pursuant to applicable Law TxDOT is entitled to claim from Developer damages that result from an early termination (giving so far as practicable other than an early termination due to a default by TxDOT hereunder) and constitute a measure of future compensation, the aggregate amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely damages, if any, that may be payable to TxDOT for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) lost future compensation in respect of the Founderremaining period of the stated Term of this Tolling Services Agreement (without regard to such early termination hereof) following the date of any such termination hereof shall not exceed the TxDOT Prospective Compensation Damages Limit (and for the avoidance of doubt, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) it is acknowledged that such limitation applies only in respect of TxDOT’s prospective compensation that would be lost as a consequence of the Companyearly termination of this Tolling Services Agreement, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors and such limitation shall not be entitled apply to recover from the Warrantors under the Warranties more than once in respect limit any claims of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter TxDOT relating to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change compensation accrued and owing to legislation, any increase in rates TxDOT under this Tolling Services Agreement as of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date termination of this Agreement by TxDOT due to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied a default by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.Developer hereunder,
Appears in 2 contracts
Sources: Tolling Services Agreement, Tolling Services Agreement
Limitations on Liability. The limitations set out in this clause 9.6 Seller's liability under Section 10.3 is limited by all of the following:
(A) Seller shall not apply be liable for any individual Claim or Warranty Claim for which the amount of damages or other payment to a claim under this agreement against which Buyer would otherwise be entitled is less than One Hundred Thousand U.S. Dollars (US$100,000) (excluding interest, costs and expenses).
(B) Seller shall not be liable for any Claim or Warranty Claim unless the Warrantors aggregate amount of Seller's liability in respect of a breach of all Claims and Warranty Claims made by Buyer (a “Claim”excluding any Warranty Claims excluded pursuant to Section 10.4(A)) which is under this Agreement and by Terminal Interests Buyer (or the delay in discovery of which isexcluding any Warranty Claims excluded pursuant to Section 10.4(A) the consequence of fraud, or dishonesty on the part of the Warrantors:
Terminal Interests ASPA) under the Terminal Interests ASPA exceeds three and one-half percent (a3.5%) The rights of the Investors in respect of any Claim shall Consolidated Purchase Price, and then only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details extent of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007such excess.
(bC) The Warrantors Seller shall not have any liability for indemnification under Section 10.4(A) in excess of eight and one-half percent (8.5%) of the Consolidated Purchase Price in the aggregate.
(D) Seller shall not be liable in respect of any Claim under (other than with respect to the Warranties Retained Obligations) or Warranty Claim unless Notice is given by Buyer to Seller in writing, giving reasonably detailed information concerning the total cumulative Claim or Warranty Claim within six (6) months after the Closing Date. The liability of Seller in relation to any Claim (other than with respect to the Warrantors Retained Obligations) or Warranty Claim pursuant to or in respect of all such Claims exceeds £25,000 (in which event the Warrantors this Agreement shall be liable for the whole of such liability absolutely cease and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn terminate (if it such Claim or Warranty Claim has not been previously satisfied, settled or withdrawn) six (6) months after the service of the Notice of such Claim or Warranty Claim given to Seller pursuant to Section 10.4(D), unless legal dispute resolution proceedings in accordance with Section 19 in respect thereof of such Claim or Warranty Claim shall have been commenced in each case, within nine months such six (6) month period. For this purpose, dispute resolution proceedings shall not be deemed to have been commenced unless they shall have been properly issued and validly served upon Seller. In respect of any liability which is contingent, Seller shall have no liability unless and until such liability becomes an actual liability and is due and payable. This provision shall not operate to avoid a Claim or Warranty Claim made in respect of a contingent liability or not capable of being quantified within the giving time limits specified in this Section 10.4(D), provided that once the liability becomes actual or capable of written notice of being quantified, then Buyer shall be bound to commence legal proceedings, including arbitration, within the Claimfollowing three (3) months.
(hE) The Warrantors shall not be liable for any Claim under the Warranties Claims relating to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase Alleged Title Defects are addressed solely in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceArticle 11.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 2 contracts
Sources: Asset Sale and Purchase Agreement, Asset Sale and Purchase Agreement (Tesoro Logistics Lp)
Limitations on Liability. The limitations set out in Notwithstanding any other provision of this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the WarrantorsAgreement:
(a) The rights Seller shall not have any liability pursuant to Section 8.2(a) unless and until the aggregate amount of all Losses incurred or suffered by the Purchaser Indemnified Parties for which they are entitled to indemnification pursuant to Section 8.2(a) exceeds 1% of the Investors Purchase Price (the “Basket Amount”), but in respect of any Claim the event such Losses exceed the Basket Amount, Seller shall only be enforceable if the Investors give written notice liable and responsible to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit Purchaser Indemnified Parties for the financial year ended 31 March 2007full amount of such Losses (subject to Section 8.4(b)), without reduction for the Basket Amount. Purchaser shall not have any liability pursuant to Section 8.3(a) unless and until the aggregate amount of all Losses incurred or suffered by the Seller Indemnified Parties for which they are entitled to indemnification pursuant to Section 8.3(a) exceeds the Basket Amount, but in the event such Losses exceed the Basket Amount, Purchaser shall be liable and responsible to the Seller Indemnified Parties for the full amount of such Losses (subject to Section 8.4(b)), without reduction for the Basket Amount.
(b) The Warrantors Other than for liability under Section 8.9 and Article 9, in no event shall not be liable in respect of any Claim under the Warranties unless the total cumulative aggregate liability of Seller for Losses incurred or suffered by the Warrantors in respect Purchaser Indemnified Parties exceed 25% of all such Claims exceeds £25,000 the Purchase Price (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess“Indemnification Cap”).
(c) Where there have been breaches Other than liability under Section 8.9 or Article 9, or for breach of the Warranties then the Investors Purchaser’s obligations to make any payment pursuant to Section 2.2, in no event shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid liability of Purchaser for Losses incurred or suffered by the Investor SharesSeller Indemnified Parties exceed the Indemnification Cap.
(d) The Investors shall not be entitled sole and exclusive liability and responsibility of Seller to recover from the Warrantors Purchaser Indemnified Parties under or in connection with this Agreement or the Warranties more than once transactions contemplated hereby (including for any breach of or inaccuracy in respect any representation or warranty or for any breach of any covenant or obligation) and the sole and exclusive remedy of the same damage sufferedPurchaser Indemnified Parties with respect to any of the foregoing, shall be as set forth in Articles 8 and 9 and Section 11.16.
(e) The Warrantors sole and exclusive liability and responsibility of Purchaser to the Seller Indemnified Parties under or in connection with this Agreement or the transactions contemplated hereby (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation) and the sole and exclusive remedy of the Seller Indemnified Parties with respect to any of the foregoing, shall be under no liability under the Warranties as set forth in respect of any matter to the extent that the matter or circumstance giving rise to such liability was DisclosedArticles 8 and 9 and Section 11.16.
(f) If In no event shall any Claim against party have any liability under this Agreement (including any Exhibit to this Agreement), any Transaction Document, agreement, certificate or other document delivered at either the Warrantors is notified to themRFS Closing or the RFCIL Closing, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arisesapplicable, or is increased or extended by:
(i) any change to legislation, any increase otherwise in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or connection with the consent of an Investor Majority;
(ii) any action transactions contemplated hereby or omission to take action where consent thereby for special, speculative, punitive, indirect or agreement to take consequential damages or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedfor lost profits.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 2 contracts
Sources: Membership Interest and Share Purchase Agreement, Membership Interest and Share Purchase Agreement (Residential Capital, LLC)
Limitations on Liability. (i) Notwithstanding any other provision of this Tolling Services Agreement and except as set forth in Section 19(e)(ii), to the extent permitted by applicable Law, neither Party shall be liable for punitive damages or special, indirect or incidental consequential damages or loss of profit or income arising out of breach of this Tolling Services Agreement, tort (including negligence) or any other theory of liability, and each Party hereby releases the other Party from any such liability.
(ii) The limitations set out in this clause 9.6 foregoing limitation on liability for special, indirect and incidental consequential damages or loss of profit or income shall not apply to a claim or limit any right of recovery one Party may have against the other Party under applicable Law respecting the following:
(A) Losses, damages, debts, obligations and liabilities (including defense costs) to the extent covered by the proceeds of insurance actually carried by or insuring the liable Party;
(B) Losses, damages, debts, obligations and liabilities arising out of fraud, criminal conduct, intentional misconduct, recklessness, bad faith or gross negligence;
(C) Developer’s obligation to pay compensation to TxDOT under this agreement against Tolling Services Agreement as set forth in Section 6; provided, however, that to the Warrantors extent pursuant to applicable Law TxDOT is entitled to claim from Developer damages that result from an early termination (other than an early termination due to a default by TxDOT hereunder) and constitute a measure of future compensation, the aggregate amount of such damages, if any, that may be payable to TxDOT for such lost future compensation in respect of the remaining period of the stated Term of this Tolling Services Agreement (without regard to such early termination hereof) following the date of any such termination hereof shall not exceed the TxDOT Prospective Compensation Damages Limit (and for the avoidance of doubt, it is acknowledged that such limitation applies only in respect of TxDOT’s prospective compensation that would be lost as a consequence of the early termination of this Tolling Services Agreement, and such limitation shall not apply to limit any claims of TxDOT relating to (i) any compensation accrued and owing to TxDOT under this Tolling Services Agreement as of the date of any termination of this Agreement by TxDOT due to a default by Developer hereunder, (ii) amounts owing to TXDOT in connection with any such termination in respect of TxDOT’s recoverable unamortized costs and expenses related to its services hereunder), or (iii) any Developer breach or failure to perform under the Agreement;
(D) Loss of Toll Revenues owing to Developer, attributable to a TxDOT breach or failure to perform;
(E) Damages that are owing by a Party under another agreement or contract pertaining to the Facility (including, without limitation, the Agreement) or the services under this Tolling Services Agreement and that are incurred due to the other Party’s breach of Warranty this Tolling Services Agreement;
(F) Transition costs incurred by Developer or TxDOT upon its proper exercise of a “Claim”right to terminate this Tolling Services Agreement;
(G) which is (or In the delay in discovery event of which is) Developer’s proper exercise of a right to terminate this Tolling Services Agreement, costs Developer incurs to procure, hire, transition to and compensate a replacement service provider for comparable services for the consequence of fraud, or dishonesty on the part remainder of the Warrantors:term after termination, to the extent the compensation exceeds that which would be owing to TxDOT for the remainder of the term, subject to the limitation that damages related to any difference in level of compensation of the replacement service provider shall not exceed the Replacement Provider Compensation Damages Limit;
(aH) The rights Specific amounts either Party may owe or be obligated to reimburse to the other Party under the express provisions of the Investors this Tolling Services Agreement in respect of any Claim shall only be enforceable if the Investors give written notice period prior to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completiontermination;
(iiI) in respect of the CompanyInterest, a total sum equal late charges, fees, transaction fees and charges, penalties and similar charges that this Tolling Services Agreement expressly states are due from one Party to the aggregate Preference Issue Price paid for the Investor Shares.other Party; and
(dJ) The Investors shall not be entitled Any credits, deductions or offsets that this Tolling Service Agreement expressly provides to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter a Party against amounts owing to the extent that the matter or circumstance giving rise to such liability was Disclosedother Party.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 2 contracts
Sources: Tolling Services Agreement, Tolling Services Agreement
Limitations on Liability. The limitations set out in Notwithstanding any other provision of this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the WarrantorsAgreement:
(a) The rights Seller shall not have any liability pursuant to Section 8.2(a) unless and until the aggregate amount of all Losses incurred or suffered by the Purchaser Indemnified Parties for which they are entitled to indemnification pursuant to Section 8.2(a) exceeds 1% of the Investors Purchase Price (the “Basket Amount”), but in respect of any Claim the event such Losses exceed the Basket Amount, Seller shall only be enforceable if the Investors give written notice liable and responsible to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit Purchaser Indemnified Parties for the financial year ended 31 March 2007full amount of such Losses (subject to Section 8.4(b)), without reduction for the Basket Amount. Purchaser shall not have any liability pursuant to Section 8.3(a) unless and until the aggregate amount of all Losses incurred or suffered by the Seller Indemnified Parties for which they are entitled to indemnification pursuant to Section 8.3(a) exceeds the Basket Amount, but in the event such Losses exceed the Basket Amount, Purchaser shall be liable and responsible to the Seller Indemnified Parties for the full amount of such Losses (subject to Section 8.4(b)), without reduction for the Basket Amount.
(b) The Warrantors Other than for liability under Section 8.9 and Article 9, in no event shall not be liable in respect of any Claim under the Warranties unless the total cumulative aggregate liability of Seller for Losses incurred or suffered by the Warrantors in respect Purchaser Indemnified Parties exceed 25% of all such Claims exceeds £25,000 the Purchase Price (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess“Indemnification Cap”).
(c) Where there have been breaches Other than liability under Section 8.9 or Article 9, or for breach of the Warranties then the Investors Purchaser’s obligations to make any payment pursuant to Section 2.2, in no event shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid liability of Purchaser for Losses incurred or suffered by the Investor SharesSeller Indemnified Parties exceed the Indemnification Cap.
(d) The Investors shall not be entitled sole and exclusive liability and responsibility of Seller to recover from the Warrantors Purchaser Indemnified Parties under or in connection with this Agreement or the Warranties more than once transactions contemplated hereby (including for any breach of or inaccuracy in respect any representation or warranty or for any breach of any covenant or obligation) and the sole and exclusive remedy of the same damage sufferedPurchaser Indemnified Parties with respect to any of the foregoing, shall be as set forth in Article 8, Article 9 and Section 11.17.
(e) The Warrantors sole and exclusive liability and responsibility of Purchaser to the Seller Indemnified Parties under or in connection with this Agreement or the transactions contemplated hereby (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation) and the sole and exclusive remedy of the Seller Indemnified Parties with respect to any of the foregoing, shall be under no liability under the Warranties as set forth in respect of any matter to the extent that the matter or circumstance giving rise to such liability was DisclosedArticle 8, Article 9 and Section 11.17.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 2 contracts
Sources: Loan Agreement (Residential Capital, LLC), Share Purchase Agreement (Residential Capital, LLC)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply Notwithstanding anything to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantorscontrary herein:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors Parent shall not be liable for any Claim under the Warranties to the extent that it arises, breach of any representation or is increased or extended by:
(i) any change to legislation, any increase warranty of Parent set forth in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement attributable to a single course of conduct or related set of facts, events or circumstances unless the aggregate amount of Damages incurred by the Purchaser Indemnitees for such breach exceeds $125,000 (the “De Minimis Amount”); provided, however, that the limitations set forth in this Section 9.4(a) shall not apply to Damages arising out of or resulting from any breach of any Fundamental Representation (other than a breach of the representations and not publicly known at the date of this Agreementwarranties in Sections 4.11(b) through (d));
(iib) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors Parent shall not be liable for any claim under breach of any representation or warranty of Parent set forth in this Agreement unless the Warranties aggregate amount of Damages incurred by the Purchaser Indemnitees for such breach and all other breaches otherwise subject to indemnification hereunder exceeds $20,000,000 (the “Deductible”), and then only to the extent such aggregate Damages exceed such amount; provided, however, that the factlimitations set forth in this Section 9.4(b) shall not apply to indemnification for Damages arising out of or resulting from any breach of any Fundamental Representation (other than a breach of the representations and warranties in Sections 4.11(b) through (d)) (and, matterfor the avoidance of doubt, (A) Damages attributable to a single course of conduct or related set of facts, events or circumstances that do not exceed the De Minimis Amount pursuant to Section 9.4(a) shall not be counted towards the calculation of the Deductible, and (B) Damages indemnifiable and actually paid by Parent on account of any breach of any Fundamental Representation shall not be counted towards the calculation of the Deductible);
(c) in no event shall Parent’s aggregate Liability arising out of or circumstance relating to Section 9.2(a)(i) exceed $150,000,000 (the “Cap”); provided, however, that the Cap shall not apply to indemnification for Damages arising out of or resulting from any breach of any Fundamental Representation;
(d) notwithstanding anything to the contrary in this Agreement, in no event shall Parent’s aggregate Liability arising out of or relating to Section 9.2(a)(i), Section 9.2(a)(ii) or Section 10.1 exceed the Purchase Price; provided, however, that the limitations set forth in this Section 9.4(d) shall not apply with respect to any breach of the covenants set forth in Section 1.6;
(e) Parent shall not be liable for any Brazil Environmental Liabilities pursuant to Section 9.2(a)(iv) unless the aggregate amount of Damages incurred by Purchaser Indemnitees for all Brazil Environmental Liabilities otherwise subject to indemnification under this Agreement exceeds $3,000,000 (the “Brazil Environmental Deductible”), and then only to the extent such aggregate Damages exceeds such amount, and in no event shall Parent’s aggregate Liability for such Damages exceed $35,000,000 (the “Brazil Environmental Cap”);
(f) no Purchaser Indemnitee shall be entitled to indemnification under Section 10.1 or this Article IX to the extent a Liability or reserve relating to the matter giving rise to such claim is remediable and is remedied by or at Damages has been included in the expense calculation of the Warrantors within thirty days Closing Adjustment;
(g) each Indemnified Party shall, to the extent required by applicable Law, have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the date on transactions contemplated hereby upon becoming aware of any event that would reasonably be expected to, or does, give rise thereto;
(h) the amount of any Damages for which written notice an Indemnified Party claims indemnification under this Agreement shall be reduced by the amount of (i) any insurance proceeds actually received (net of any deductibles) from third party insurers with respect to such Damages (provided that the amount of such claim is given insurance proceeds deemed to have been received will also be net of any increase in premium (and retro-premium adjustments) for such insurance policies to the Warrantors.extent arising out of or resulting from such Damages), (ii) any Tax Benefit that is actually realized in the year in which such Damages are incurred, which Tax Benefit is attributable to such Damages or to the facts giving rise to such Damages, and (iii) any indemnification, contribution, offset or reimbursement payments actually received from third parties with respect to such Damages; provided, that such Indemnified Party shall use its good faith efforts to obtain recoveries from insurers, including title insurers, and other third parties in respect of this Section 9.4(h). If an Indemnified Party (A) actually receives insurance proceeds from third party insurers with respect to such Damages or (B) actually receives indemnification, contribution, offset or reimbursement payments from third parties with respect to such Damages, in each case, at any time subsequent to any indemnification payment pursuant to Section 10.1 or this Article IX and subject to the limitations in the preceding sentence, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to such amount actually received by such Indemnified Party;
(i) in the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article IX or Section 10.1, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification;
(j) The Warrantors notwithstanding anything provided under applicable Law, no Party shall have any Liability (including, without limitation, under Article X or this Article IX) for, and Damages shall not be liable include, (A) any incidental, consequential, special or indirect Damages or Damages based on lost profits or loss in respect of any Claim under the Warranties value, except to the extent that it arises, any such Damages were reasonably foreseeable or is increased or extended by:
(iB) any action punitive Damages or omission to take action by the Company or one Damages that are based on a multiple of its subsidiaries taken at the express earnings, in each case of clauses (A) and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified B), except to the Warrantors shall be contingent only, then the Warrantors shall not be extent any such Damages are awarded and paid with respect to a Third Party Claim as to which a Party is entitled to indemnification under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liabilitythis Agreement.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Newell Brands Inc)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) amounts for which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors an indemnifying party shall be liable for under Sections 18A and 18B shall be net of any insurance proceeds received or to be received by the whole indemnified party in connection with the facts and circumstances giving rise to the right of indemnification. OCEAN SPRAY SHALL HAVE NO LIABILITY TO NORTHLAND OR ANY THIRD PARTY FOR DAMAGES OR LIABILITY OR INJURY TO A THIRD PARTY ARISING FROM THE MISUSE OR MISAPPLICATION OF THE CONCENTRATE OR FROM THE CONCENTRATE BEING INCORPORATED INTO ANOTHER PRODUCT UNLESS THE CONCENTRATE FAILED TO MEET ANY OCEAN SPRAY REPRESENTATIONS AND WARRANTIES HEREIN. The liability of any party shall be limited such liability and not merely for that the excess).
(c) Where there have been breaches of the Warranties then the Investors indemnified party shall not be entitled to recover more than one recovery for any single loss, damage, cost, expense, liability, obligation or claim even though such may have resulted from any Warrantor under the Warranties in respect breach or inaccuracy of all such breaches more than:
(i) in respect than one of the Founderrepresentations, a total warranties, covenants or agreements made by the indemnifying party in this Agreement. If Northland has properly rejected Concentrate in accordance with Section 5.C. by reason of 1 x his compensation received from non-compliance with the Company in specifications on Exhibit 3 or for non-compliance with the year following Completion;
(ii) in respect of the Companyother terms, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford conditions and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date provisions of this Agreement and not publicly known at within the date of this Agreement;
applicable thirty (ii30) day period for rejection or for any change in the accounting reference date of the Company made damages, defects, shortages or failure to meet specifications on and/or after the date of this Agreement Exhibit 3, notwithstanding anything to the extent not envisaged or taken into account contrary herein, Northland’s sole and exclusive remedy (unless otherwise agreed to in writing by the preparation of the Business Plan; or
(iiiparties) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event properly rejected Concentrate or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shortages shall be contingent onlyreplacement concentrate, then which meets the Warrantors specifications on Exhibit 3, which shall not be under any obligation shipped at Ocean Spray’s cost to make payment Northland (provided that Northland had previously paid the shipment costs associated with such rejected Concentrate), and delivered in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liabilitya reasonable time.
Appears in 2 contracts
Sources: Toll Processing Agreement, Toll Processing Agreement (Northland Cranberries Inc /Wi/)
Limitations on Liability. The limitations set out in Notwithstanding any other provisions of this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (Agreement or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part any of the WarrantorsTransaction Documents to the contrary:
(a) The rights of No Seller or Member shall have any liability for Section 8.1 Indemnified Claims to the Investors extent (i) insurance proceeds (including proceeds from title insurance) in respect of any Claim shall only be enforceable if such claims are actually received by the Investors give written notice to the Warrantors (giving so far as practicable the amount Buyer Indemnitees, net of all actual and reasonable details of the Claim) on or before the date being six (6) months expenses incurred by them in recovering such proceeds from the date insurance carrier, or (ii) the Buyer Indemnitees actually receive indemnification or recovery of completion and signing damages from a third party for such claims, net of all reasonable expenses incurred by them in recovering such indemnification or recovery of damages from the audit for the financial year ended 31 March 2007third party.
(b) The Warrantors shall not be liable in respect All amounts paid by or on behalf of any Claim under Sellers or the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors Members as indemnification shall be liable for treated as adjustments to the whole of such liability and not merely for the excess)Purchase Price, except as required by applicable Law.
(c) Where there have been breaches of the Warranties then the Investors The parties shall not be entitled to recover from pursue without limitation any Warrantor rights or remedies they may have with respect to claims based upon fraud or actions that are intended to further the commission of a fraud, whether under the Warranties this Agreement, at law or in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Sharesequity.
(d) The Investors No Seller or Member will have any liability to any Buyer Indemnitee under Section 8.1(a) unless and until the Buyer Indemnitees shall have incurred on a cumulative basis Losses exceeding Twenty-Five Thousand and 00/100 Dollars ($25,000.00) (the “Basket”), at which point Sellers and the Members shall be jointly and severally liable for all Losses incurred by the Buyer Indemnitees from the first dollar up to and in excess of the amount of the Basket (such amount intended to be a threshold and not a deductible); provided, however, the Basket shall not be entitled apply to recover any Losses incurred or suffered by any of them arising out of or resulting from the Warrantors under the (i) any breach by any Seller of any Exempt Representations and Warranties more than once in respect of the same damage sufferedor any SOL Representations and Warranties or (ii) claims based upon Sellers’ fraud, fraudulent actions or intentional misrepresentation.
(e) The Warrantors Buyer will not have any liability to the Seller Indemnitees under Section 8.2 until the Seller Indemnitees shall have incurred on a cumulative basis Losses exceeding the Basket, at which point the Buyer shall be under no liability under liable for all Losses incurred by the Warranties Seller Indemnitees in respect excess of the amount of the Basket; provided, however, the Basket shall not apply to any Losses incurred or suffered by any of them arising out of or resulting from (i) any breach by Buyer of any matter to the extent that the matter Exempt Representation and Warranties or circumstance giving rise to such liability was Disclosed(ii) claims based upon Buyer’s fraud, fraudulent actions or intentional misrepresentation.
(f) If any Claim against The maximum aggregate liability of Sellers and the Warrantors is notified Members to themthe Buyer Indemnitees with respect to claims under Section 8.1(a) will be limited to an amount equal to Two Million Sixty Two Thousand Five Hundred and 00/100 Dollars ($2,062,500) (the “Cap”); provided, however, the Warrantors (other than the Company) Cap shall (so far as they are able) afford and procure that the Company affords not apply to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies any Losses incurred or suffered by any of them for and arising out of or resulting from (i) any breach by the purpose Sellers of ascertaining the positionany Exempt Representations and Warranties or any SOL Representations and Warranties, or (ii) claims based upon fraud, fraudulent actions or intentional misrepresentation.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months The maximum aggregate liability of the giving of written notice of Buyer to the Claim.
(hSeller Indemnitees with respect to claims under Section 8.2(a) The Warrantors will be limited to Cap; provided, however, such limitation shall not be liable for apply to any Claim under the Warranties to the extent that it arises, Losses incurred or is increased suffered by any of them and arising out of or extended by:
resulting from (i) any change to legislation, breach by the Buyer of any increase in rates of taxation Exempt Representations and Warranties or any change in the published practice of a revenue authoritySOL Representations and Warranties, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
or (ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged claims based upon fraud, fraudulent actions or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceintentional misrepresentation.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 2 contracts
Sources: Asset Purchase Agreement (U-Swirl, Inc.), Asset Purchase Agreement (Rocky Mountain Chocolate Factory Inc)
Limitations on Liability. 21.1 The limitations liability of the Vendor in respect of or arising out of any breach of the provisions of Clause 20 and/or the Warranties (the liability of the Vendor being referred to herein as `Liability') shall be limited as set out in Clause 20 and in this clause 9.6 Clause 21.
21.2 No Liability shall in any event arise unless and until the aggregate amount of loss sustained in respect of any claims permitted to be made under this Clause 21.2 shall equal or exceed (pound)720,000 but once the figure is exceeded the Purchaser shall be entitled to recover the whole of such amount and not just the excess. Thereafter, no liability shall arise unless the amount of the loss sustained in respect of each individual claim shall equal or exceed (pound)5,000 in which event the liability shall be in respect of the whole amount and not merely the excess.
21.3 The aggregate Liability shall not apply exceed the Consideration (as adjusted by the net amount payable pursuant to the Completion Statement under Clause 7.1 and/or any reduction in accordance with Clauses 9 or 11.3).
21.4 No claim in respect of any Liability shall be brought by the Purchaser against the Vendor unless notice in writing of any such claim (specifying in reasonable detail the nature of the breach and so far as practicable the amount claimed in respect thereof) has been given to the Vendor by no later than the Final Claim Date.
21.5 Unless proceedings in respect thereof shall have been commenced against the Vendor and/or GTC, any claim which has been made or shall be made before the Final Claim Date shall if it has not been previously satisfied settled or withdrawn be deemed to have been withdrawn and shall become fully barred and unenforceable on the expiry of the period of six months commencing on the Final Claim Date. For this purpose, proceedings shall not be deemed to have been commenced unless they shall have been issued and served upon the Vendor or GTC or, as the case may be, the Vendor's or GTC's Solicitors.
21.6 The Purchaser shall reimburse to the Vendor any sum paid to the Purchaser by the Vendor in respect of any Liability which is subsequently recovered by or paid to the Purchaser from any third party together (if the Vendor shall not have already recovered back from the Purchaser the full amount paid by the Vendor) with any repayment supplement under Section 825 of ICTA or other interest (less any taxation thereon) in respect thereof.
21.7 No Liability shall arise and the Purchaser shall have no claim whatsoever against the Vendor in respect thereof:
21.7.1 if and to the extent that allowance, provision or reserve has been made in the Completion Statement in respect of the matter to which such claim relates or such matter was taken into account in computing the amount of any such allowance, provision or reserve;
21.7.2 if and to the extent that such claim would not have arisen but for any claim, election, surrender or disclaimer made or notice or consent given or any other thing done after Completion by the Purchaser or any person connected with the Purchaser or the failure or omission of the Purchaser or any person connected with the Purchaser to make any such claim, election, surrender or disclaimer or give such notice or consent or do any other thing under the provisions of any enactment or regulation relating to Taxation;
21.7.3 if and to the extent that the Purchaser has an indemnity for or will recover the loss or damage suffered by the Purchaser arising out of such breach or claim under the terms of any insurance policy of the Purchaser or from any third party provided that the Vendor shall indemnify the Purchaser for any costs incurred in connection with the Purchaser obtaining such indemnity or recovery (providing that such indemnity does not entail any greater liability or obligation of the Vendor than it would have incurred as a liability for breach of Warranty); or
21.7.4 if and to the extent that such claim relates to a claim under this or liability for Taxation and would not have arisen but for any winding up or cessation after Completion of the Business or any trade or business carried on by the Purchaser.
21.8 All amounts available for set-off or otherwise liable to be deducted pursuant to Clause 21.7 above shall not be deducted for the purpose of determining the amount of loss sustained in connection with the de minimis limits referred to in Clause 21.2 above.
21.9 The Purchaser shall not be entitled to recover damages from the Vendor in respect of any Liability to the extent that the Purchaser has already received reimbursement or restitution in respect of the same Liability.
21.10 If any claim by any third party comes to the notice of the Purchaser by reason or in consequence of which any Liability may arise the Purchaser shall:
21.10.1 as soon as reasonably practicable (and if possible within such a period as will afford the Vendor reasonable opportunity to lodge a timely appeal against such claim) give written notice thereof to the Vendor; and
21.10.2 not make any admission of liability, agreement or compromise with any person body or authority in relation thereto without the prior agreement of the Vendor (not to be unreasonably withheld or delayed).
21.11 Provided that the Vendor acknowledges its obligation to indemnify the Purchaser in accordance with Clause 21.12, without prejudice to Clause 21.10 above and Clause 21.12 below, if the Purchaser considers that it will or may make a claim against the Warrantors Vendor for any Liability, it shall as soon as practicable so notify the Vendor pursuant to Clause 21.4, and for a period of 60 days after such notification shall grant the Vendor the opportunity to take steps to remedy or avert such Liability.
21.12 The Purchaser shall take such action as the Vendor may reasonably request (provided that such action would not harm or be to the detriment of the Business or any part thereof as carried on by the Purchaser after the Completion Date) to avoid, dispute, resist, appeal, compromise or defend or mitigate any claim which would give rise to any Liability on the basis that the Purchaser shall be indemnified by the Vendor as to all reasonable costs and expenses which it may reasonably incur by reason of such action.
21.13 In assessing any damage or other amounts recoverable in respect of any Liability there shall be taken into account the value of any immediate financial benefit obtained by the Purchaser in consequence of the event or breach giving rise thereto.
21.14 For the avoidance of doubt nothing in this Clause 21 shall in any way restrict or limit the general obligation at law of the Purchaser to mitigate any loss or damage which it may suffer in consequence of any Liability.
21.15 Any amount paid by the Vendor pursuant to the provisions of the Agreement in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect or other provisions of the Founder, Agreement shall be treated as a total of 1 x his compensation received from the Company reduction in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price Consideration paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedPurchaser.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Kaneb Pipe Line Partners L P), Sale and Purchase Agreement (Kaneb Pipe Line Partners L P)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect 17.1 Limit on Types of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:Damages Recoverable.
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors EXCEPT AS SET FORTH IN CLAUSE (giving so far as practicable the amount and reasonable details of the Claimb) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007BELOW AND TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, EACH PARTY DISCLAIMS LIABILITY FOR AND IN NO EVENT WILL EITHER PARTY BE LIABLE FOR, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) The Warrantors shall exclusion set forth in clause (a) above will not be liable in respect apply to Losses arising from a third-party claim otherwise recoverable by an indemnitee pursuant to Article 16 (Indemnification), statutory penalties arising as a result of a material breach of Section 8.9 (Privacy Laws), Article 9 (Confidentiality) and statutory penalties arising as a result of a material breach of Section 14.2 (Accuracy of Customer Data and Processing).
17.2 Limit on Amount of Direct Damages Recoverable.
(a) ACS’ cumulative liability for any Claim and all damages arising out of or relating to its performance of the Services performed pursuant to a Statement of Work under this Agreement will not exceed the lesser of (i) Customer’s actual proven direct damages for the event(s) giving rise to the cause(s) of action or (ii) the total Charges payable to ACS for the Services provided under the Warranties unless applicable Statement of Work for the nine (9) calendar months immediately preceding the month in which the event giving rise to the liability occurred (or, if the event giving rise to the liability occurs during the first nine (9) months after the Service Commencement Date, the total Charges payable to ACS pursuant to the applicable Statement of Work under this Agreement for such nine (9) months). This limitation will not apply to losses or damages attributable to claims by an indemnitee pursuant to Article 16 (Indemnification) statutory penalties arising as a result of a material breach of Section 8.9 (Privacy Laws), Article 9 (Confidentiality), statutory penalties arising as a result of a material breach of Section 14.2 (Accuracy of Customer Data and Processing), claims relating to any amounts or credits due Customer from ACS under this Agreement as set forth in this Agreement, claims relating to ACS’ willful or intentional misconduct or gross negligence or claims submitted for coverage under ACS’ commercial general liability policies set forth in Section 12.1 as such policies are required to be maintained by ACS up to the amount of the proceeds received under such policies for the subject claim.
(b) Customer’s cumulative liability for any and all damages arising out of or related to this Agreement will not exceed an amount equal to the Warrantors in respect total Charges payable to ACS under the applicable Statement of all such Claims exceeds £25,000 Work for the nine (9) calendar months immediately preceding the month in which the event giving rise to the Warrantors shall be liable liability occurred (or, if the event giving rise to the liability occurs during the first nine (9) months after the Commencement Date, the total Charges payable to ACS pursuant to the applicable Statement of Work under this Agreement for such first nine (9) months). ] This limitation will not apply to losses or damages attributable to (i) claims by an indemnitee pursuant to Article 16 (Indemnification), statutory penalties arising as a result of a material breach of Section 8.9 (Privacy Laws), Article 9 (Confidentiality), statutory penalties arising as a result of a material breach of Section 14.2 (Accuracy of Customer Data and Processing), claims relating to Customer’s willful or intentional misconduct or gross negligence, or claims relating to the whole of such liability and not merely for the excess)failure by Customer to pay undisputed amounts under this Agreement or any Termination Fees as set forth in this Agreement.
(c) Where there Each Party will have been breaches of the Warranties then the Investors shall not be entitled a duty to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Sharesmitigate damages as provided by applicable law.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 2 contracts
Sources: Master Agreement for Business Process Outsourcing Services, Master Agreement for Business Process Outsourcing Services (Office Depot Inc)
Limitations on Liability. The limitations set out (a) With respect to any claims for indemnification under Section 6.3(a) and under Section 6.5 in respect of the ▇▇▇▇▇ Matter, the Binghamton Matter or the Lock Matter, the Purchaser shall not be entitled to indemnification therefor until the aggregate of Shareholders’ indemnification obligations thereunder, determined without regard to this clause 9.6 Section 6.8 or any indemnification obligation by Shareholders pursuant to Section 6.5 other than with respect to the ▇▇▇▇▇ Matter, Binghamton Matter or the Lock Matter, exceeds $1,000,000, and then only to the extent that such Losses exceed $1,000,000 (the “$1 Million Indemnity Deductible”). Notwithstanding the foregoing, the $1 Million Indemnity Deductible shall not apply to a claim under this agreement against the Warrantors claims by Purchaser based on breaches of representations and warranties contained in respect of a breach of Warranty Sections 2.11 (a “Claim”Employee Benefit Matters), 2.12 (Taxes) which is and Section 2A.5 (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Title).
(b) The Warrantors With respect to any claims for indemnification under Section 6.5 other than in connection with the ▇▇▇▇▇ Matter, Binghamton Matter or the Lock Matter, Purchaser shall not be liable entitled to indemnification until the aggregate of Shareholders’ indemnification obligations thereunder (other than in respect of any Claim under the Warranties unless ▇▇▇▇▇ Matter, Binghamton Matter or the total cumulative liability Lock Matter), determined without regard to this Section 6.8, exceed $2,000,000, and then only to the extent that such Environmental Liabilities exceed $2,000,000; provided that Purchaser shall be entitled to only 50% of the Warrantors indemnification otherwise available under Section 6.5 (other than in respect of all the ▇▇▇▇▇ Matter, Binghamton Matter or the Lock Matter) to the extent the Environmental Liabilities exceed $2,000,000 up to $7,000,000; and provided, further, any such Claims exceeds £25,000 (in Environmental Liabilities exceeding $7,000,000 for which event the Warrantors Purchaser is entitled to indemnification under Section 6.5 shall be liable for the whole sole obligation of such liability and not merely for the excess)Shareholders.
(c) Where there have been breaches Notwithstanding anything to the contrary stated in this Agreement, the aggregate liability of the Warranties then Shareholders to the Investors Purchaser pursuant to Article VI and with respect to any Working Capital Deficit due to the Purchaser under Section 1.5 (b) shall not be entitled to recover from any Warrantor under exceed $20,000,000 (the Warranties in respect of all such breaches more than:
(i“Liability Cap”) and the Purchaser’s sole recourse in respect of the Founder, a total of 1 x his compensation received from Shareholders’ indemnification obligations hereunder shall be the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal funds held pursuant to the aggregate Preference Issue Price paid for Escrow Agreement. For the Investor Shares.
(d) The Investors avoidance of doubt, the Liability Cap shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter apply to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them claims for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise indemnification by reason of some liability which at the time that Shareholders’ failure to comply with its obligations under Section 4.9 (Exclusivity) or if this Agreement is terminated by Purchaser pursuant to Section 7.1(d)(ii) (the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability“Cap Exceptions”).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Actuant Corp), Stock Purchase Agreement (Actuant Corp)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Except in the event of (i) Fraud, (ii) breach of any covenant set forth in this Agreement, (iii) breach or inaccuracy of Fundamental Representations, or (iv) breach of the Investors representations and warranties set forth in Section 3.16 or a claim for Indemnified Taxes, in each case solely to the extent of Special Escrow Tax Losses or Unsatisfied Current Income Taxes, Acquiror’s sole and exclusive source of recovery pursuant to this ARTICLE IX with respect to any 10 Certain confidential information contained in this document, marked with asterisks in brackets, has been redacted pursuant to a request for confidential treatment and has been filed separately with the United States Securities and Exchange Commission. breach of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details representation or warranty of the Claim) on Company, Blocker Seller or before Blocker Company set forth herein and any claim for Indemnified Taxes shall be the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Indemnification Escrow Fund.
(b) The Warrantors shall not be liable Notwithstanding anything to the contrary contained in this Agreement, except for any liability for indemnifiable Damages incurred based on Fraud, and without limiting any right of the Company or its Affiliates to pursue any claim under the 2016 Agreement against any applicable Escrow Participant, the aggregate liability of the Escrow Participants for indemnifiable Damages (i) under Section 9.2(a)(iv) and Section 3.16 in respect of any Claim under Special Escrow Tax Losses shall not exceed the Warranties unless amount contained in the total cumulative liability sub-account of the Warrantors Special Escrow Fund for Special Escrow Tax Losses, and (ii) under Section 9.2(a)(vi) shall not exceed the amount contained in the sub-account of the Special Escrow Fund for [**]11 Investigation Losses. The Acquiror’s sole and exclusive source of recovery pursuant to this ARTICLE IX in respect of all such Claims exceeds £25,000 of: (in which event the Warrantors x) Special Escrow Tax Losses shall be liable the sub-account of the Special Escrow Fund for Special Tax Losses, (y) Unsatisfied Current Income Taxes shall be the whole sub-account of such liability the Special Escrow Fund for Unsatisfied Current Income Taxes, and not merely (z) [**]11 Investigation Losses shall be the sub-account of the Special Escrow Fund for the excess)[**]11 Investigation Losses.
(c) Where there have been breaches Except in the event of Fraud and subject to Section 9.3(a), each Escrow Participant’s aggregate liability for Damages under Section 9.2(a) shall be limited to the portion of the Warranties then Closing Consideration actually paid to such Escrow Participant pursuant to this Agreement (including any amount paid into escrow that is attributable to such Escrow Participant).
(d) Without limiting the Investors effect of any other limitation set forth in this ARTICLE IX, the indemnification provided for in Section 9.2(a)(i) and Section 9.2(a)(iv) (other than the Fundamental Representations, and the representations and warranties set forth in Section 3.16 or a claim for Indemnified Taxes, in each case solely to the extent of Special Escrow Tax Losses or Unsatisfied Current Income Taxes) shall not apply, and Acquiror shall not be entitled to recover from exercise any Warrantor indemnification rights under this Agreement, except to the Warranties in respect of all such breaches more than:
(i) in respect extent that the aggregate amount of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not Damages against which Acquiror would otherwise be entitled to recover be indemnified under Section 9.2(a)(i) exceeds $[**]12 (the “Deductible”). If the aggregate amount of such Damages exceeds the Deductible, then Acquiror shall, subject to the other limitations set forth in this Agreement, be entitled to seek recovery from the Warrantors under Indemnification Escrow Fund only against the Warranties more than once portion of such Damages in respect excess of the same damage sufferedDeductible.
(e) The Warrantors amount of any Damages that are subject to indemnification under this ARTICLE IX shall be under no liability under calculated net of: (i) the Warranties in respect amount of any matter insurance proceeds (including with respect to the R&W Insurance Policy), indemnification payments, contribution payments or reimbursements received or receivable by Acquiror, the Surviving Entity or any Affiliate of Acquiror 11 Certain confidential information contained in this document, marked with asterisks in brackets, has been redacted pursuant to a request for confidential treatment and has been filed separately with the United States Securities and Exchange Commission. 12 Certain confidential information contained in this document, marked with asterisks in brackets, has been redacted pursuant to a request for confidential treatment and has been filed separately with the United States Securities and Exchange Commission. or the Surviving Entity in connection with such Damages or any of the events or circumstances giving rise or otherwise related to such Damages; (ii) the amount of any reserves or accruals appearing on the Closing Balance Sheet of the Company in connection with such Damages or any of the events or circumstances giving rise or otherwise related to such Damages and (iii) any amounts taken into account in the calculation of Closing Date Net Working Capital, Holder Expenses or Closing Date Indebtedness. Acquiror and the Surviving Entity shall seek, and shall cause each of their respective Affiliates to seek, full recovery under all insurance policies covering any Damages to the same extent as they would if such Damages were not subject to indemnification hereunder.
(f) In no event shall the Acquiror Indemnitees have any right to indemnification under this ARTICLE IX to the extent that the matter or circumstance giving rise applicable Damages (i) are attributable solely to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors Post-Closing Tax Periods (other than Damages arising from breaches of the Companyrepresentations and warranties in Sections 3.16(e), 3.16(h), 3.16(j), 3.16(n), 3.17(h), 3.17(i) shall or 3.17(n) or breach of post-closing covenant); (so far ii) are incurred as they a result of any transaction occurring on the Closing Date but after the Closing outside the Ordinary Course of Business (other than explicitly contemplated by this Agreement or otherwise required by Law), (iii) are able) afford and procure that the Company affords due to the Investors unavailability in any Post-Closing Tax Period of any net operating losses, credits or other Tax attributes from a Pre-Closing Tax Period, or (iv) that are attributable to the manner in which Acquiror finances the purchase and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies sale of them for the purpose Units or Shares or any of ascertaining the positionother transactions contemplated by this Agreement.
(g) Any Claim For purposes of determining the accuracy or breach of the representations and warranties made by the Company, the Blocker Company and the Blocker Seller set forth in ARTICLE IV hereof, respectively, and for calculating the amount of any Damages arising therefrom, all “material”, “Material Adverse Effect” and similar qualifications and words of similar import contained in such representation and warranty shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claimdisregarded.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The (a) Except with respect to claims related to breaches of Fundamental Representations or any representation or warranty contained in either Section 3.18(d) or Section 3.18(l), indemnification shall be available to the Buyer Indemnitees or the Seller Indemnitees under clause (i) of Section 10.02 or clause (i) of Section 10.03 (as applicable) with respect to breaches of representations or warranties only to the extent the aggregate amount of Damages otherwise due to the Buyer Indemnitees or the Seller Indemnitees, respectively, for all claims for such indemnification exceeds 1% of the Purchase Price and then such indemnification shall be available to the Buyer Indemnitees or the Seller Indemnitees, respectively, for the amount of all such payments due to the Buyer Indemnitees or the Seller Indemnitees, respectively, in excess of such amount, but only for all such Damages up to 1% of the Purchase Price. Except with respect to claims related to breaches of Fundamental Representations, Seller shall not have any liability under clause (i) of Section 10.02 with respect to breaches of representations or warranties for any individual item or series of related items arising out of the same or similar facts, events or circumstances where the Damages relating thereto are less than $200,000. For the avoidance of doubt, limitations set out in of the scope of Seller’s or Buyer’s liability under this clause 9.6 shall Section 10.04(a) do not apply to a claim indemnification obligations available to Buyer Indemnitees under this agreement against the Warrantors in respect clauses (ii) and (iii) of a breach Section 10.02 or to Seller Indemnitees under clauses (ii) and (iii) of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Section 10.03.
(b) The Warrantors shall not be liable in respect amount of Damages resulting from any Claim under the Warranties unless the total cumulative liability inaccuracy or breach of the Warrantors representations and warranties contained in respect of all such Claims exceeds £25,000 this Agreement shall be determined without references to the terms “material”, “materially”, “Material Adverse Effect”, “material adverse effect” or other similar qualifications as to materiality (including specific monetary thresholds) (other than any instances in which event such qualifications or monetary thresholds qualify any list (rather than disclosing exceptions to the Warrantors relevant representations) of Contracts, Product Registrations or Business Employee Benefit Plans to be set forth on the Disclosure Letter) contained or incorporated in any such representation or warranty, but such qualifications and monetary thresholds, to the extent contained or incorporated in any such representation or warranty, shall be liable apply for the whole purposes of determining whether any such liability and not merely for the excess)inaccuracy or breach has occurred.
(c) Where there have been breaches The right of the Warranties then the Investors Indemnitees to seek indemnification pursuant to this Article X shall not be entitled affected or deemed waived by reason of the fact that, based on any facts or circumstances known, or that should have been known, to recover Seller, Buyer or any other Indemnitee, including from any Warrantor under investigation made by or on behalf of such Indemnitee, the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company information provided in the year following Completion;
(ii) Management Presentation, the Data Room or given in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise writing to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified Indemnitee prior to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at (except, for the date avoidance of this Agreement;
(ii) doubt, any change disclosure of any fact or item in the accounting reference date of the Company made on and/or after the date of this Agreement any portion to the extent not envisaged Disclosure Letter), such Indemnitee or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority representatives knew or with the consent of an Investor Majority;
(ii) should have known that any action representation or omission to take action where consent warranty is, was or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedmight be inaccurate.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Indemnity Escrow Fund shall serve as the sole source of recovery for indemnification claims made by the Buyer Indemnified Parties under Section 9.2; provided, however, that (x) the right of the Investors in respect Buyer Indemnified Parties to be indemnified for more than the Indemnity Cap shall apply, and (y) the right to be indemnified solely and exclusively from the Indemnity Escrow Fund shall not apply, to claims: (i) relating to a breach of any Claim Special Representation, for which the maximum liability of each Equityholder shall only be enforceable if equal to 25% of the Investors give written notice Merger Consideration received by such Equityholder; (ii) relating to the Warrantors breach of a Fundamental Representation; (giving so far as practicable the amount and reasonable details iii) for any Indemnified Taxes; or (iv) that arise out of Fraud by or on behalf of the ClaimCompany in connection with this Agreement and the transactions contemplated hereby or willful breach of any covenants contained in Article VI of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, in no event shall any Equityholder be liable to the Buyer Indemnified Parties for Damages under this Article IX or otherwise relating to this Agreement and the transaction contemplated hereby (i) on in excess of such Equityholder’s Pro Rata Share of such Damages or before the date being six (6ii) months from the date of completion and signing in excess of the audit Merger Consideration actually received by such Equityholder (including any Retention Holdback Amount). The Indemnity Escrow Fund must first be exhausted before recovery can be made against any Equityholder. Notwithstanding anything to the contrary contained in this Agreement, the limitations set forth in this Section 9.3 shall not apply with respect to an Equityholder in the case of such Equityholder’s own Fraud and such Equityholder shall be liable to the Buyer Indemnified Parties for the financial year ended 31 March 2007full amount of Damages resulting from, arising out of or related to such Fraud. With respect to indemnification claims for which the Indemnity Escrow Fund does not serve as the sole source of recovery, any amounts owing to any Buyer Indemnified Party by the Founder Shareholders pursuant to this Article IX may be recovered, at Buyer’s discretion, from each Founder Shareholder’s share of the Retention Holdback Amount.
(b) The Warrantors Notwithstanding anything to the contrary contained in this Agreement, except for Damages resulting from a breach of a Fundamental Representation or Fraud by or on behalf of the Company, a willful breach of this Agreement by the Company, or for Indemnified Taxes, no Equityholder shall not be liable to a Buyer Indemnified Party in respect of any Claim under indemnification hereunder pursuant to Section 9.2 except to the Warranties unless extent that both (i) the total cumulative liability amount (without duplication) of Damages of the Warrantors in respect party seeking indemnification for any individual claim or series of all such Claims related claims exceeds £$25,000 (the “Mini-Basket”) and (ii) the aggregate amount of Damages for all individual claims that are subject to the Deductible and that exceed the Mini-Basket exceeds $350,000 (the “Deductible”), in which event the Warrantors shall Buyer Indemnified Parties shall, subject to the other limitations contained herein, be liable for entitled to be indemnified only against the whole portion of such liability and not merely for Damages in excess of the excess)Deductible.
(c) Where Without limiting the effect of any other limitation contained in this Article IX, for purposes of computing the amount of any Damages incurred by Buyer under this Article IX, there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum deducted: an amount equal to the aggregate Preference Issue Price paid amount of any indemnification payments, contribution payments, reimbursements or other recoveries (collectively, “Recoveries”) actually received (net of any costs of recovery, enforcement, deductibles and retro-premium adjustments and any Taxes associated with receiving such Recoveries net of any cash Tax benefits actually received for the Investor Sharestax year in which such Damages are incurred as a result of such underlying Damages as determined on a “with and without” basis, and excluding any amounts recovered by the Buyer Indemnified Parties under insurance policies) by Buyer or any of its Affiliates in connection with such Damages or any of the circumstances giving rise thereto. If Buyer or any of its Affiliates actually receives any Recoveries after an indemnification payment has been made to it hereunder, then Buyer shall promptly pay (up to the aggregate amount of indemnification payments previously made to Buyer or its Affiliates hereunder) to the Equityholders’ Representative the amount of such Recoveries at such time or times as and to the extent that such Recoveries are actually received, to the extent not previously offset against Damages paid by the Equityholders.
(d) The Investors shall not be entitled Subject to recover from Section 9.4, the Warrantors Buyer Indemnified Parties’ right to bring claims for Damages under the Warranties more than once matters set forth in respect of Section 9.2(d), (e), (f) and (g) shall expire on the same damage sufferedIndemnity Escrow Expiration Date.
(e) The Warrantors For purposes of determining any breach or inaccuracy and the amount of any Damages under Section 9.2(a) or Section 9.2(b), all qualifications and limitations as to materiality, Material Adverse Effect and words of similar import set forth in this Agreement shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Discloseddisregarded.
(f) If For purposes of determining any Claim breach or inaccuracy and the amount of any Damages for the representations and warranties under Section 4.14 (b) and (d) that are qualified by the Company’s actual knowledge with respect to third-party patents, subject to other limitations contained in Section 9.3, such qualifiers shall be disregarded solely for claims made in accordance with Section 9.4, prior to the 12 month anniversary of the Closing Date, as to which the amount of Damages recoverable from the Equityholders may not exceed 17% of the Merger Consideration allocated to each such Equityholder. Subject to other limitations contained in Section 9.3, claims made for Damages by Buyer against the Warrantors is notified to themEquityholders, in accordance with Section 9.4, following the Warrantors 12 month anniversary of the Closing Date for breach of the representations and warranties under Section 4.14(b) and (other than d) that are qualified by the Company) shall (so far as they are able) afford and procure that the Company affords ’s actual knowledge with respect to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has third-party patents, may not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months exceed 25% of the giving of written notice of the ClaimMerger Consideration allocated to each such Equityholder.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out Anything to the contrary in this clause 9.6 Agreement notwithstanding: (a) no Purchaser Indemnitee shall make a Claim against any Seller Indemnitee for indemnification pursuant to this Article IX for Damages unless and until the aggregate amount of all Damages of all Purchaser Indemnitees shall exceed $150,000 (the "Indemnification Basket"); and then Purchaser Indemnitees shall only be permitted to recover from Seller Indemnitees Damages that Purchaser Indemnitees shall have incurred which are in excess of the Indemnification Basket; provided, however, that any Damages arising from, or relating to, Claims made under Sections 9.2(iii), (iv), (v) and (vi) shall not be subject to, or limited by, the Indemnification Basket; (b) Seller shall not be obligated to indemnify Purchaser Indemnitees for Damages arising from, or relating to, Claims made under Section 9.2, which exceed, in the aggregate, $5,000,000 (the "Indemnification Cap"); provided that (and notwithstanding anything to the contrary herein) the Indemnification Cap for Damages arising from, or relating to, Claims made under Section 9.2, for breaches of Section 3.8 with respect to title and or rights in respect to the Purchased Assets, Perry Leased Real Property, Perry Leased Equipment, Wastewater Facility Leased Real Property, Wastewater Facility Leased Assets and the Leased Garage shall be the Purchase Price; provided further that the Indemnification Cap shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraudany Damages arising from, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such relating to, Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Foundermade under Sections 9.2(iii), a total of 1 x his compensation received from the Company in the year following Completion;
(iv), (v) and (vi) and (ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid Claims for the Investor Shares.
(d) The Investors shall not be entitled to recover Damages resulting from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter intentional fraud or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Planwillful misconduct; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.and
Appears in 1 contract
Limitations on Liability. The limitations All representations and warranties of Buyer set out forth in Paragraph 9(a) of this Agreement (collectively, the “Buyer Representations”) and the representations and warranties of Seller set forth in Paragraph 9(b) of this Agreement (collectively, the “Seller Representations”) shall be deemed to have been made as of the Effective Date and again as of the Closing Date. Notwithstanding the foregoing, Seller’s representations and warranties contained in Paragraph 9(b) of this Agreement shall survive the Closing for a period of nine (9) months after the Closing Date (the “Survival Period”) subject to the provisions of this Paragraph 9(c); provided, however, that (i) the Survival Period for Seller’s and Buyer’s obligations under Paragraphs 8(f) and 8(i) shall survive until thirty (30) days after the Final Adjustment Date, and (ii) the Survival Period for Seller’s obligations under Paragraph 21(f) shall survive until the expiration of the rights of the Tenant under the Lease with respect to operating expenses for the calendar years preceding the calendar year of Closing. Notwithstanding anything to the contrary contained in this clause 9.6 shall not apply Agreement or in any exhibits attached hereto or in any documents executed or to a claim under be executed in connection herewith (collectively, including this agreement Agreement, said exhibits and all such documents, the “Purchase Documents”), it is expressly understood and agreed by and between the parties hereto that the recourse of Buyer or its successors or assigns against Seller with respect to the Warrantors in respect of a alleged breach of Warranty (a “Claim”) which is (by or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Seller of any representation, warranty, covenant, undertaking, indemnity or agreement contained in any of the Investors Purchase Documents (collectively, “Seller’s Undertakings”) shall (i) be deemed waived unless Buyer has both delivered to Seller written notice that Buyer is seeking recourse under Seller’s Undertakings (the “Recourse Notice”) prior to the expiration of the Survival Period and filed suit within sixty (60) days thereafter, and (ii) be limited to an amount not to exceed Three Million Dollars ($3,000,000) in respect the aggregate for all recourse of Buyer under the Purchase Documents. Seller shall have no liability to Buyer for a breach or default of any Claim of Seller’s Undertakings unless the valid claims for all such breaches and defaults collectively aggregate more than Fifteen Thousand Dollars ($15,000), in which event the full amount of such, valid claims shall only be enforceable if the Investors give written notice actionable. Any Seller’s Undertakings for which a Recourse Notice has not been given prior to the Warrantors (giving so far as practicable the amount and reasonable details expiration of the Claim) Survival Period, or for which such specific suit has not been commenced on or before the date being six sixty (660) months from days following the expiration of the Survival Period shall terminate and cease to be of any force or effect, and neither party shall have any right, remedy, obligation or liability thereunder. Any such representation or warranty for which such specific written notice has not been given prior to the expiration of the Survival Period, or for which such specific suit has not been commenced on or before the date of completion and signing which is sixty (60) days following the expiration of the audit for the financial year ended 31 March 2007.
(b) The Warrantors Survival Period, shall not terminate and cease to be liable in respect of any Claim under force or effect and neither party shall have any right, remedy, obligation or liability thereunder. In the Warranties unless the total cumulative liability event, prior to Closing, Seller discovers that any of the Warrantors in respect of all such Claims exceeds £25,000 Seller’s Undertakings have materially and adversely changed, Seller shall give written notice thereof to Buyer (in which event the Warrantors a “Material and Adverse Change Notice”) and Seller’s Undertakings shall be liable deemed qualified and amended as set forth in such Material and Adverse Change Notice. Within three (3) days after receipt of a Material and Adverse Change Notice (the Closing Date being hereby extended for the whole such period, if necessary to give Buyer adequate time to respond), Buyer, as its sole and exclusive remedy at law or in equity on account of such liability Material and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled Adverse Change Notice from Seller, all other rights and remedies being hereby waived, may elect by written notice to recover from any Warrantor under the Warranties in respect of all such breaches more than:
Seller either to (i) terminate this Agreement, in respect which case the provisions of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
Paragraph 3(a) shall apply or (ii) in respect of accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Company, a total sum equal Transactions without any right or remedy on account thereof. Buyer’s failure to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which give timely written notice of such claim is given election to the Warrantors.
(j) The Warrantors Seller shall not be liable in respect of any Claim under the Warranties constitute Buyer’s irrevocable election to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express accept and written request of an Investor Majority or approve Seller’s Undertakings as so qualified and amended and proceed with the consent of an Investor Majority;
(ii) Transactions without any action right or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedremedy on account thereof.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Corporate Income Trust, Inc.)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights right of Purchaser to be indemnified from the Escrow Fund pursuant to this Section 6 shall be the sole and exclusive remedy with respect to any breach of any representation, warranty or covenant of the Investors Company or any other indemnification matter set forth in, or any other breach by the Company of, this Agreement, provided, that the Escrow Fund shall not be Purchaser’s sole remedy for any claims for breaches of Fundamental Representations or claims based on Fraud or Willful Misconduct. For the avoidance of doubt, in no event shall Purchaser or any Affiliate of Purchaser or the Company be entitled to recover directly from either Seller Party or any other Person with respect to any indemnification claim pursuant to this Section 6; provided that claims for breaches of any Claim Fundamental Representations shall only be enforceable if not exceed the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Acquisition Consideration.
(b) The Warrantors Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2 shall not apply, and Purchaser shall not be liable entitled to exercise any indemnification rights under this Agreement, except to the extent any Indemnification Claim where the Damages related to that Indemnification Claim (or series of Indemnification Claims arising from the same or substantially similar facts or circumstances) exceeds $[***] (the “Minimum Claim Amount”). If the amount of Damages for an individual Indemnification Claim (or series of Indemnification Claims arising from the same or substantially similar facts or circumstances) exceeds the Minimum Claim Amount, then the Purchaser shall, subject to the other limitations set forth in respect of any Claim under this Agreement, be entitled to be indemnified from the Warranties unless the total cumulative liability Escrow Fund against all Damages for such Indemnification Claim, regardless of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess)Minimum Claim Amount.
(c) Where there have been breaches Without limiting the effect of any other limitation set forth in this Section 6, the Warranties then the Investors indemnification provided for in Section 6.2 shall not apply, and Purchaser shall not be entitled to recover from exercise any Warrantor indemnification rights under this Agreement, except to the Warranties in respect of all such breaches more than:
(i) in respect extent that the aggregate amount of the FounderDamages against which Purchaser would otherwise be entitled to be indemnified under Section 6.2 [*** ] = Certain confidential information contained in this document, a total marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of 1 x his compensation received the Securities Exchange Act of 1934, as amended. exceeds $[***] (the “Deductible”), provided that the Deductible shall not apply to [***]. If the aggregate amount of such Damages exceeds the Deductible, then Purchaser shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Company Escrow Fund only against the portion of such Damages in the year following Completion;
(ii) in respect excess of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor SharesDeductible.
(d) The Investors Purchaser shall not be entitled use commercially reasonable steps to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect mitigate any Damages upon becoming aware of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall event which would reasonably be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arisesexpected to, or is increased or extended by:
(i) any change to legislationdoes, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practicegive rise thereto.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. Subject always to Clause 5.6, the Purchaser agrees with the Vendor that any Claim or Claims made by the Purchaser shall be governed by and shall be dealt with in accordance with the following provisions of this Schedule, where applicable. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part liability of the Warrantors:
(a) The rights of the Investors Vendor in respect of any Claim Claims shall only be enforceable if limited, where applicable, as follows:- there shall be disregarded for all purposes (including, for the Investors give written notice to avoidance of doubt, the Warrantors (giving so far as practicable the amount and reasonable details application of the Claimde minimis threshold in paragraph 2.2) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable any Warranty Claim in respect of any Claim under which the Warranties unless amount which the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 Purchaser would otherwise (in which event the Warrantors shall be liable but for the whole provisions of such liability and not merely for this paragraph 2.1) be entitled to recover would be less than £50,000; the excess).
(c) Where there have been breaches of the Warranties then the Investors Purchaser shall not be entitled to recover from any Warrantor under amount in respect of a Warranty Claim unless the Warranties amount recoverable, when aggregated with all other amounts recoverable for all Warranty Claims, exceeds £250,000, in which event only the excess over £250,000 shall be recoverable; and the aggregate liability of the Vendor in respect of all and any Claims shall be limited to and shall in no event exceed $16,500,000. The Vendor shall:- cease to have any liability for any Warranty Claim (apart from any Warranty Claim in relation to the Warranties contained in paragraph 18 of Schedule 4 (the "Tax Warranties"), on 31 March 2003; cease to have any liability for breach of the Tax Warranties and under the Tax Covenant on the seventh anniversary of Completion; have no liability in respect of a Warranty Claim of which the Purchaser has not given written notice (containing such breaches more than:
details (ias are available to the Purchaser or any other member of the Purchaser Group at that time) of the nature of the potential liability and, so far as is practicable, of the amount likely to be claimed in respect of the FounderWarranty Claim) to the Vendor before the relevant date or dates set out in Clause 3.1 or Clause 3.2 as the case may be. The Vendor shall have no liability in respect of any Warranty Claim:- to the extent that the Warranty Claim in question arises, or is increased, as a total result of 1 x his compensation received from any increase in rates of Taxation or any change in the law or published practice of a Revenue authority made after the date of this Agreement with retrospective effect; and to the extent that the Company or any of the Subsidiaries: (i) is insured against any loss or damage suffered by the Company or any of the Subsidiaries forming the basis of the Warranty Claim in question under the year following Completion;
terms of any insurance policy of the Company or any of the Subsidiaries for the time being in force; and (ii) actually recovers under such insurance policy. If any matter comes to the notice of the Purchaser, the Company or any of the Subsidiaries which may give rise to a Warranty Claim, the Purchaser shall (and shall procure that the Company and the Subsidiaries shall):- as soon as reasonably practicable give notice of that matter to the Vendor, specifying in such detail as is reasonably available to it at that time the nature of the potential liability in respect of the relevant Warranty Claim and, so far as is practicable, the amount likely to be claimed in respect of it; use reasonable endeavours to procure that the current auditors of the Company and the Subsidiaries make available any relevant working papers in respect of audits of the Company's and the Subsidiaries accounts for any relevant accounting period in connection with such Warranty Claim; in respect of any third party claim or potential claim in respect of which the Purchaser has been notified in writing and which in the Purchaser's reasonable opinion is likely to give rise to a Claim (a "Third Party Claim") and save where to do so would or might reasonably breach or endanger the Purchaser's or any Group Company of the Purchaser's legal privilege in any accounts, a total sum equal documents or records, give the Vendor and its professional advisers reasonable access at any reasonable times to the aggregate Preference Issue Price paid for premises and personnel of the Investor Shares.
Purchaser and/or the Company or any of the Subsidiaries (das the case may be) The Investors and to any relevant chattels, accounts, documents and records within the power or control of the Purchaser and/or the Company or any of the Subsidiaries so as to enable the Vendor and its professional advisers to examine such premises, chattels, accounts, documents and records and to take copies at their own expense; If the Purchaser becomes aware of any Third Party Claim other than any Third Party Claim relating to the Tax Warranties, (subject to being fully indemnified to its reasonable satisfaction by the Vendor against all reasonable out-of-pocket costs and expenses incurred by the Purchaser or the Company or the Subsidiaries) the Purchaser shall:- procure that notice of such Third Party Claim is given to the Vendor as soon as is reasonably practicable; not make and shall co-operate to procure that the Company and the Subsidiaries shall not make any admission of liability, agreement or compromise with any person, body or authority in relation to any such Third Party Claim without prior consultation with the Vendor; save where to do so might in the reasonable opinion of the Purchaser have a significant adverse effect on the business of the Target Group or its ability to obtain or maintain financing, take and shall co-operate to procure that the Company and the Subsidiaries shall take such action as the Vendor may reasonably request to avoid, dispute, resist, appeal, compromise or defend such Third Party Claim or any adjudication in respect of that third party claim; and save where to do so might in the reasonable opinion of the Purchaser have a significant adverse effect on the business of the Target Group or a significant adverse effect on its ability to obtain or maintain financing in relation to the Target Group if so required by the Vendor in writing, shall (subject to entering into arrangements to the Purchaser's reasonable satisfaction under which the Vendor indemnifies the Purchaser or any relevant member of the Purchaser Group) ensure (or, as appropriate, shall co- operate to procure that the Company and the Subsidiaries shall ensure), at the request in writing of the Vendor, that the Vendor is placed in a position to take on or take over the conduct of all proceedings and/or negotiations of whatsoever nature arising in connection with the Third Party Claim in question and provide (or, as appropriate, co-operate to procure that the Company and the Subsidiaries provide) such information and assistance as the Vendor may reasonably require in connection with the preparation for and conduct of such proceedings and/or negotiations. For the avoidance of doubt:- nothing in this Schedule shall limit the Purchaser's obligation to mitigate its loss in respect of any Warranty Claim and the Purchaser undertakes to mitigate its loss in relation to all other Claims; and neither the Purchaser nor the Company or any of the Subsidiaries shall be entitled to recover from the Warrantors under the Warranties damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect any one shortfall, damage, deficiency, breach or other set of any matter to the extent that the matter or circumstance giving circumstances which give rise to such liability was Disclosed.
(f) If one or more Claim or Claims or other claim or claims made under this Agreement or any Claim against of the Warrantors is notified to them, Transitional Services Agreement or the Warrantors (other than Distribution Agreements as the Company) shall (so far as they are able) afford case may be and procure that for this purpose recovery by the Purchaser or any Purchaser Group Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn a recovery by each of them in respect of any Claim or other claim or claims made under this Agreement or any of the Transitional Services Agreement or the Distribution Agreements as the case may be; If the Vendor pays to the Purchaser an amount in discharge of a Warranty Claim and the Purchaser or a Target Group Company subsequently recovers (whether by payment, discount, credit, relief or otherwise) from a third party (including any tax authority) a sum which is referable to the matter giving rise to the Warranty Claim or obtains a relief (as defined in the Tax Covenant) which is so referable, the Purchaser shall (or, as appropriate, shall procure that the Target Group Company shall) forthwith reimburse the Vendor:- an amount equal to the sum recovered from the third party (or the value of the relief obtained, calculated by reference to the amount saved) less any reasonable out-of-pocket costs and expenses incurred by the Purchaser or the Target Group Company in recovering the same and any tax suffered on the receipt; or if the figure resulting under paragraph 7.1 above is greater than the amount paid by the Vendor to the Purchaser or the Target Group Company in respect of the relevant Warranty Claim or the aggregate payments previously made by the Vendor in respect of all relevant Warranty Claims, such lesser amount as shall have been so paid by the Vendor. If any Warranty Claim shall arise by reason of some liability which at the time that the Warranty Claim is notified to the Vendor is contingent only, the Vendor shall not be under any obligation to make any payment to the Purchaser in respect of such Warranty Claim until such time as the contingent liability ceases to be so contingent (provided that this paragraph shall not operate to avoid a Warranty Claim made in respect of a contingent liability within the applicable time limit specified in paragraph 3 if it becomes an actual liability). The sole remedy of the Purchaser in respect of any Warranty Claim shall be an action for damages or, as the case may be, a right to recover under an indemnity and the Purchaser shall not thereby be entitled to rescind this Agreement. Any Warranty Claim shall (if it has not been previously satisfied, settled or withdrawn) be deemed to have been withdrawn (and no new Warranty Claim may be made in respect of the facts giving rise to such withdrawn Warranty Claim) unless legal proceedings in respect thereof of it have been commenced by both being issued and served within nine 12 months of notice having been given by the Purchaser pursuant to paragraph 3. No application for injunctive relief may be made in respect of the matter giving rise to such withdrawal Warranty Claim. A breach of Warranty which is capable of remedy shall not entitle the Purchaser to compensation in respect of such breach unless the Vendor is given written notice of such breach and such breach is not to the Claim.
(h) reasonable satisfaction of the Purchaser remedied within 30 days after the date on which such notice is served on the Vendor. The Warrantors Vendor shall not be liable for any Warranty Claim under the Warranties to the extent that it arisessuch Warranty Claim arises or, such Warranty Claim otherwise having arisen, is increased as a result of any change made after Completion in any accounting or taxation policies or practice, or is increased or extended by:
(i) the length of any change to legislationaccounting period for tax purposes, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after or any of the date of this Agreement to Subsidiaries, the extent not envisaged Purchaser or taken into account any other company in the preparation same group of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by companies as the Company or one of its subsidiaries taken at the express and written request of an Investor Majority Subsidiaries or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedPurchaser.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The indemnification contemplated by Sections 9.1 and 9.2 will be subject to the following limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantorsand conditions:
(a) The rights of Parent Indemnified Parties will not be entitled to indemnification under Section 9.1(a) unless and until the Investors in aggregate Losses with respect of any Claim to claims for indemnification under Section 9.1(a) exceed an amount equal to One Hundred Thousand Dollars ($100,000) (the “Deductible Amount”), at which point the Parent Indemnified Parties shall only be enforceable entitled to indemnification under Section 9.1(a) for all Losses in excess of the Deductible Amount; provided, however, the Deductible Amount will not be applicable with respect to (i) claims for indemnification for any inaccuracy in or breach of the Company Fundamental Reps or (ii) claims for indemnification arising out of or based on Fraud. Furthermore, with respect to any claim for indemnity under Section 9.1(a) for which the Deductible Amount would apply, if the Investors give written notice matter is also the basis for a claim for indemnity under any other provision of Section 9.1 for which the Deductible Amount would not apply, then the Deductible Amount will not be applicable to such claim. Except in the Warrantors (giving so far as practicable case of Fraud, no Parent Indemnified Party shall be entitled to receive any indemnification payments with respect to any amount that exceeds the aggregate amount and reasonable details of funds in the Claim) on or before the date being six (6) months Indemnity Escrow Account from the date of completion and signing of the audit for the financial year ended 31 March 2007any Company Equityholder.
(b) The Warrantors Except in the case of Fraud, (i) any funds held in the Indemnity Escrow Account shall be the sole source of recovery of the Parent Indemnified Parties with respect to any claims for indemnification pursuant to this Article 9 and once all funds in the Indemnity Escrow Account have been distributed or otherwise exhausted the Parent Indemnified Parties shall not be liable entitled to indemnification from any Company Equityholder for any claims thereafter, and (ii) other than any claims which are to be satisfied out of funds in respect of the Indemnity Escrow Account, the Parent Indemnified Parties shall not assert claims directly against any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess)Company Equityholder.
(c) Where there have been breaches of the Warranties then the Investors shall The Equityholder Indemnified Parties will not be entitled to recover from any Warrantor indemnification under Section 9.2(a) unless and until the Warranties aggregate Losses with respect to claims for indemnification under Section 9.2(a) exceed an amount equal to the Deductible Amount, at which point the Equityholder Indemnified Parties shall only be entitled to indemnification under Section 9.2(a) for all Losses in excess of the Deductible Amount; provided, however, the Deductible Amount will not be applicable with respect of all such breaches more than:
to (i) claims for indemnification for any inaccuracy in respect or breach of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
Parent Fundamental Reps or (ii) in claims for indemnification arising out of or based on Fraud. Furthermore, with respect to any claim for indemnity under Section 9.2(a) for which the Deductible Amount would apply, if the matter is also the basis for a claim for indemnity under any other provision of Section 9.2 for which the CompanyDeductible Amount would not apply, a total sum equal then the Deductible Amount will not be applicable to the aggregate Preference Issue Price paid for the Investor Sharessuch claim.
(d) The Investors shall Equityholder Indemnified Parties will not be entitled to recover from indemnification under this Article 9 to the Warrantors under extent that the Warranties more than once aggregate amount of all payments collectively received by the Parent Indemnified Parties in respect satisfaction of claims for indemnification pursuant to this Article 9 exceeds an amount equal to the same damage sufferedIndemnity Escrow Amount; provided, however, the limitation set forth in this Section 9.6(d) will not apply to Losses arising out of or based on Fraud.
(e) The Warrantors shall be under no liability under the Warranties in respect For purposes of any matter indemnification claim made pursuant to Sections 9.1(a) or 9.2(a), any exception or qualification relating to “Material Adverse Effect” or other materiality qualification, limitation or exception included in such underlying representation or warranty or in the extent that definition of any defined term used therein will be disregarded and not given effect (i) when determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) when determining the matter amount of Losses resulting from such alleged breach or circumstance giving rise to such liability was Disclosedinaccuracy.
(f) If any Claim against the Warrantors Each indemnification obligation set forth in this Article 9 is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months non-exclusive of the giving of written notice of other indemnification obligations in this Article 9 and will have separate and independent significance and meaning. With respect to any claim for indemnification under this Article 9 for which an Indemnification Period or other limitation would apply, if the Claim.
(h) The Warrantors shall not be liable matter is also the basis for a claim for indemnification under any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date other provision of this Agreement and Article 9 for which such Indemnification Period or other limitation would not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent onlyapply, then the Warrantors shall Indemnified Party will be entitled to pursue indemnification under such other provision and such Indemnification Period or other limitation would not be under any obligation applicable to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liabilityclaim.
Appears in 1 contract
Limitations on Liability. The limitations set out in Notwithstanding any other provision of this clause 9.6 shall not apply to a claim Agreement or any right or remedy available under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantorsany Law:
(a) The rights Purchaser Indemnified Parties shall have the right to payment by the Seller under Section 12.2(a) only if, and only to the extent that, the Purchaser Indemnified Parties shall have incurred indemnifiable Losses in excess of $424,000 and then only for the Investors amounts in excess thereof; provided, however, that the foregoing limitation shall not apply with respect to any indemnifiable Losses under Sections 12.2(b), (c) or (d) or relating to a breach or inaccuracy of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount Tax Warranty, Environmental Warranty or Title and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Authorization Warranty.
(b) The Warrantors Neither the Seller nor any of its Affiliates shall have any liability under or otherwise in connection with this Agreement or the Related Agreements or the transactions contemplated hereby or thereby in excess of $6,360,000 in the aggregate; provided, however, that the foregoing limitation shall not be liable in apply with respect to any indemnifiable Losses under Sections 12.2(b), (c) or (d) or relating to a breach or inaccuracy of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability Tax Warranty, Environmental Warranty or Title and not merely for the excess)Authorization Warranty.
(c) Where there Neither the Seller nor any of its Affiliates shall have been breaches any liability under or otherwise in connection with this Agreement or the Related Agreements or the transactions contemplated hereby or thereby in excess of $42,400,000 (“Cap”) in the Warranties then the Investors aggregate; provided, however, that such Cap shall not be entitled apply to recover from any Warrantor indemnifiable Losses under the Warranties in respect of all such breaches more than:
(i) in Section 12.2(b) with respect to post-Closing covenants and obligations under this Agreement or any Related Agreement (exclusive of obligations of the FounderSeller under the Transition Services Agreement, a total of 1 x his compensation received from which shall be governed by the Company in the year following Completion;
limitations set forth therein), or (ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor SharesSections 12.2(c) or (d).
(d) The Investors Seller Indemnified Parties shall have the right to payment by the Purchaser under Section 12.3(a) only if, and only to the extent that, the Seller Indemnified Parties shall have incurred indemnifiable Losses in excess of $424,000 and then only for the amounts in excess thereof; provided, however, that the foregoing limitation shall not be entitled apply with respect to recover from the Warrantors any indemnifiable Losses under the Warranties more than once in respect Sections 12.3(b), (c) or (d) or relating to a breach or inaccuracy of the same damage sufferedany Title and Authorization Warranty.
(e) The Warrantors Neither the Purchaser nor any of its Affiliates shall be under no have any liability under or otherwise in connection with this Agreement or the Warranties Related Agreements or the transactions contemplated hereby or thereby in excess of $6,360,000 in the aggregate; provided, however, that the foregoing limitation shall not apply with respect to any indemnifiable Losses under Sections 12.3(b), (c) or (d) or relating to a breach or inaccuracy of any matter to the extent that the matter or circumstance giving rise to such liability was DisclosedTitle and Authorization Warranty.
(f) If Neither the Purchaser nor any Claim against of its Affiliates shall have any liability under or otherwise in connection with this Agreement or the Warrantors is notified Related Agreements or the transactions contemplated hereby or thereby in excess of the Cap in the aggregate; provided, however, that such Cap shall not apply to themany indemnifiable Losses under (i) Section 12.3(b) with respect to post-Closing covenants and obligations under this Agreement or any Related Agreement (exclusive of obligations of the Purchaser under the Transition Services Agreement, which shall be governed by the Warrantors limitations set forth therein), or (other than the Companyii) shall Sections 12.3(c) or (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the positiond).
(g) Any Claim shall be deemed to be withdrawn IN NO EVENT SHALL THE SELLER OR ANY OF ITS AFFILIATES HAVE ANY LIABILITY UNDER THIS AGREEMENT, ANY RELATED AGREEMENT (if it has not been previously satisfiedOTHER THAN THE TRANSITION SERVICES AGREEMENT) OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY FOR ANY SPECIAL, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the ClaimSPECULATIVE, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE), WHETHER OR NOT THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(h) The Warrantors shall not be liable for any Claim under WITH THE EXCEPTION OF REMEDIES BASED ON FRAUD, THE SOLE AND EXCLUSIVE LIABILITY AND RESPONSIBILITY OF THE SELLER AND ITS AFFILIATES TO THE PURCHASER AND ITS AFFILIATES AND THE SOLE AND EXCLUSIVE LIABILITY AND RESPONSIBILITY OF THE PURCHASER AND ITS AFFILIATES TO THE SELLER AND ITS AFFILIATES UNDER OR IN CONNECTION WITH THE ASSETS, THE BUSINESS, THIS AGREEMENT, THE RELATED AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (INCLUDING FOR ANY BREACH OF OR INACCURACY IN ANY REPRESENTATION OR WARRANTY OR FOR ANY BREACH OF ANY COVENANT OR OBLIGATION OR FOR ANY OTHER REASON), AND THE SOLE AND EXCLUSIVE REMEDY OF THE PURCHASER AND ITS AFFILIATES WITH RESPECT TO ANY OF THE FOREGOING, SHALL BE AS SET FORTH IN THIS ARTICLE XII, or in ARTICLE XV of the Warranties to Transition Services Agreement, as applicable. To the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation either party hereto or any change in of its Affiliates has any Losses for which it may assert any other right to indemnification, contribution or recovery from the published practice other party hereto or any of a revenue authority, in each case made on and/or after the date of its Affiliates (whether under this Agreement or under any common law theory or any statute or other Law), such party hereby waives, releases and agrees not publicly known at the date to assert such right, and such party agrees to cause each of this Agreement;
(ii) any change in the accounting reference date its Affiliates to waive, release and agree not to assert such right, regardless of the Company made on and/or after the date theory upon which any claim may be based, whether contract, equity, tort, fraud, warranty, strict liability or any other theory of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceliability.
(i) The Warrantors Neither the Seller nor any of its Affiliates shall not be liable have any liability under or otherwise in connection with this Agreement or the Related Agreements or the transactions contemplated hereby or thereby for any claim under the Warranties Loss (i) to the extent that arising as a result of any action taken or omitted to be taken by the factPurchaser or any of its Affiliates, matter, event (ii) with respect to any representation or circumstance giving rise to such claim is remediable and is remedied by or at the expense warranty of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties Seller herein to the extent that it arises, arising from or is increased or extended by:
(i) relating to any action or omission matter disclosed on the Schedules to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement corresponding to such representation or warranty and requested from the Investors and/or a BVP Director but refused.
(kiii) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent onlyextent accrued, then provided or reserved for in the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liabilityBusiness Financial Statements or the Final Closing Statement of Inventory.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Owens & Minor Inc/Va/)
Limitations on Liability. The limitations liability of the Seller for ------------------------ indemnification hereunder shall be limited to the sum of (a) $14,883,690 plus (b) the amount of the Earn-Out Payment, if any, actually paid to RM pursuant to the Stock Purchase Agreement, less (c) the Post-Closing Reduction, if any, actually paid (in the form of Retained Inventory and/or cash) to the Buyer (collectively, the "Indemnification Amount"); provided that the aggregate amount -------- for which the Seller shall be obligated to indemnify the Buyer hereunder, and for which RM shall be obligated to indemnify the Buyer under the Stock Purchase Agreement, shall not exceed the Indemnification Amount. Notwithstanding the foregoing provisions, however, the Seller will have indemnification liability under this Agreement only if the aggregate amount of Losses suffered by the Buyer under this Agreement and under the Stock Purchase Agreement exceeds an amount equal to $350,000 (the "Indemnity Threshold"); provided, that after the -------- aggregate amount of Losses suffered by the Buyer exceeds the Indemnity Threshold, all Losses suffered by the Buyer (including those included in reaching the Indemnity Threshold) shall be subject to the Seller's indemnification obligations. The liability of the Buyer to the Seller for indemnification shall be limited to the Indemnification Amount. The liability of the Buyer to the Seller for indemnification shall be limited to the Indemnification Amount; provided that the aggregate amount for which the Buyer -------- shall be obligated to indemnify the Seller hereunder, and for which the Buyer shall be obligated to indemnify RM under the Stock Purchase Agreement, shall not exceed the Indemnification Amount. The indemnification obligations of the parties set out forth in this clause 9.6 Article 8 shall not apply be the exclusive remedy of the parties with respect to a claim under this agreement against the Warrantors in respect of claims for a breach of Warranty (a “Claim”) which is (representations or warranties hereunder or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice failure to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed perform obligations required to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claimperformed hereunder.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Notwithstanding anything to the contrary contained herein, (i) Guarantor shall have no obligations under this Guaranty if the Deficiency shall be less than or equal to $20,000,000.00, and (ii) the Obligations, if any, shall be limited to an amount equal to the Fair Market Value of the Investors in respect Key Biscayne Property, as determined pursuant to Section 4(b) below, less the sum of any Claim shall only be enforceable if (A) the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details then outstanding balance of the ClaimKey Biscayne Loan, plus (B) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007$20,000,000.00.
(b) The Warrantors shall not be liable in respect of any Claim under If the Warranties unless the total cumulative liability amount of the Warrantors in respect of all such Claims exceeds £25,000 Deficiency shall exceed $20,000,000.00, then within five (in which event 5) days following the Warrantors shall be liable for the whole determination of such liability Deficiency, Guarantor and not merely for Lender shall together endeavor in good faith to establish the excess).
fair market value (cthe "Fair Market Value") Where there have been breaches of the Warranties Key Biscayne Property. If, within such five (5) day period (the "Negotiation Period"), Guarantor and Lender are unwilling or unable to mutually agree upon the Fair Market Value of the Key Biscayne Property as set forth above, then Guarantor, within fourteen (14) days following the expiration of the Negotiation Period, will deliver to Lender its written estimation of the Fair Market Value, as determined by Guarantor ("Guarantor's Value Determination"). If Guarantor shall fail to deliver Guarantor's Value Determination, then the Investors shall not Fair Market Value set forth in Lender's Value Determination (hereinafter defined) will be entitled the Fair Market Value. Lender will have fourteen (14) days from the date of Guarantor's delivery of Guarantor's Value Determination to recover from any Warrantor under the Warranties in respect notify Guarantor of all such breaches more than:
(i) in respect Lender's acceptance of Guarantor's Value Determination or deliver to Guarantor its written estimation of the FounderFair Market Value ("Lender's Value Determination"). If Lender does not deliver Lender's Value Determination to Guarantor within such fourteen (14) day period, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall Lender will be deemed to have accepted Guarantor's Value Determination and the Fair Market Value set forth in Guarantor's Value Determination will be withdrawn the Fair Market Value. If Lender does deliver Lender's Value Determination within such fourteen (if it has not been previously satisfied14) day period, settled or withdrawnthen Guarantor and Lender will have an additional ten (10) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after days from the date of this Agreement delivery of Lender's Value Determination to negotiate the Fair Market Value acceptable to both Guarantor and Lender. If no agreement can be reached as to the Fair Market Value within such (10) day period, then within five (5) days after such ten (10) day period expires, Guarantor and Lender will seek to agree in writing on a mutually acceptable appraiser that has at least seven (7) years' full-time commercial appraisal experience in appraising hotel properties and is a member of the American Institute of Real Estate Appraisers (M.A.I.) or, if such Institute does not publicly known at then exist, a member of the date successor organization or an organization of this Agreement;
substantially equivalent stature (iithe "Appraiser"). If, within such five (5) day period, Guarantor and Lender are unable to agree in writing on the appointment of the Appraiser, then each party, within three (3) days, shall notify the other in writing of an M.A.I. appraiser of its choosing, and those two appraisers shall select the Appraiser within three (3) days. The Appraiser will be a person who has not previously acted in any change capacity for either party and who meets the foregoing experience qualifications. If either party fails to timely identify an M.A.I. appraiser of its choosing to participate in the accounting reference date process of selecting the Appraiser, the M.A.I. identified by the other party shall select the Appraiser. Within forty-five (45) days following his or her appointment, the Appraiser will review Guarantor's Value Determination and Lender's Value Determination of the Company made on and/or after the date of this Agreement to the extent not envisaged Fair Market Value and such other information (including his or taken into account in the preparation her own appraisal of the Business Plan; or
(iiiKey Biscayne Property) any change in any accounting policy as he or practice she deems necessary and will determine whether Guarantor's Value Determination or Lender's Value Determination of the Company made on and/or after Fair Market Value is more reasonable. The Appraiser will immediately notify the date parties of this Agreement to his or her determination of whether the extent not envisaged Guarantor's Value Determination or taken into account in Lender's Value Determination is more reasonable, and such determination will be the preparation of Fair Market Value for the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceKey Biscayne Property.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Deficiency Guaranty Agreement (Sonesta International Hotels Corp)
Limitations on Liability. (a) The limitations set out Sellers shall not be required to make any indemnification payments pursuant to Section 9.2(b)(i) or (ii) until such time as the total amount of all Damages that have been suffered or incurred by the Buyer Indemnified Parties, and for which the Buyer Indemnified Parties are entitled to indemnification under Sections 9.2(b)(i) and (ii) hereof, exceeds $750,000 in this clause 9.6 the aggregate (the “Deductible”), whereupon the Buyer Indemnified Parties shall be entitled to indemnification hereunder for the aggregate amount of all Damages in excess of the Deductible; provided that the Deductible shall not apply to a any claim under this agreement against the Warrantors in respect of arising from a breach of Warranty any Fundamental Representation. The Sellers shall not be required to make any indemnification payments pursuant to Section 9.2(b)(ix) until such time as the total amount of all Damages that have been suffered or incurred by the Buyer Indemnified Parties, and for which the Buyer Indemnified Parties are entitled to indemnification under Section 9.2(b)(ix) hereof, exceeds $850,000 in the aggregate (a the “ClaimEnvironmental Claims Deductible”) which is (or ), whereupon the delay Buyer Indemnified Parties shall be entitled to indemnification hereunder for the aggregate amount of all Damages in discovery of which is) the consequence of fraud, or dishonesty on the part excess of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Environmental Claims Deductible.
(b) The Warrantors Sellers’ maximum liability with respect to any indemnification payments pursuant to Sections 9.2(b)(i) and (ii) (other than with respect to any Fundamental Representations) shall not exceed the Indemnification Escrow Amount. The Sellers’ maximum liability with respect to any indemnification payments pursuant to Sections 9.2(b)(i) and (ii) with respect to Fundamental Representations and Sections 9.2(b)(iii), (iv), (v), (vii), (viii), and (ix) shall not exceed the Purchase Price. The Equityholders’ maximum liability with respect to any indemnification payments pursuant to Section 9.2(b)(vi) shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess)capped.
(c) Where there have been breaches In connection with any claim for indemnification by the Buyer Indemnified Parties under Section 9.2(b)(i) or (ii), and prior to seeking or recovering from the Sellers monetary damages in excess of the Warranties then Indemnification Escrow Account, the Investors Buyer shall not be entitled seek, and use its best efforts to recover from any Warrantor pursue, full recovery under the Warranties in respect of all Rep & Warranty Policy as to such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Sharesclaim.
(d) The Investors shall not be entitled representations and warranties of each Seller contained in Article 2 (including pursuant to recover from the Warrantors under Joinder, as applicable), the Warranties more than once Acquired Companies contained in respect Article 3, constitute the sole and exclusive representations and warranties of the same damage sufferedAcquired Companies and the Sellers, as applicable, to the Buyer in connection with the transactions contemplated hereby. The representations and warranties of the Buyer contained in Article 4 constitute the sole and exclusive representations and warranties of the Buyer to the Acquired companies and the Sellers in connection with the transactions contemplated hereby. Except for such representations and warranties (in each case, as modified by the sections of the Disclosure Schedule), none of Equityholders, the Seller, the Acquired Companies, the Buyer or any other Person makes any other express or implied representation or warranty with respect to such Parties or the transactions contemplated by this Agreement, and each Party disclaims any other representations or warranties, whether made by such Parties or any of their Affiliates, officers, directors, employees, agents or representatives. Except for such representations and warranties (in each case, as modified by the sections of the Disclosure Schedule), each Party hereby disclaims all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to any other Party or its Affiliates, officers, directors, employees, agents or representatives (including opinion, information, projection, or advice that may have been or may be provided to any Party or any director, officer, employee, agent, consultant, or representative of such Party or any of its Affiliates). The Buyer acknowledges and agrees that it has not relied on any representations and warranties other than the express representations and warranties set forth in this Agreement in making its investment decision with respect to the Units. No right or obligation under this Article 9 will be waived or otherwise affected by any knowledge (of any form or type) of the Buyer or by any investigation, due diligence or verification by or on behalf of the Buyer on or before the date hereof or at or before Closing. For purposes of this Article 9, any inaccuracy in or breach of any representation or warranty and any Damages arising therefrom shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(e) The Warrantors amount of any Damages subject to indemnification by an Indemnifying Party hereunder shall be net of (i) any amounts actually recovered by the Indemnified Party under no liability insurance policies (other than the Rep & Warranty Policy), other sources of indemnification, or otherwise, with respect to such Damages (net of documented out-of-pocket expenses incurred in connection with such recovery or any related premium adjustments); provided, however, that, except as to the Buyer’s obligations to seek recovery under the Warranties Rep & Warranty Policy, no Indemnified Party shall have any obligation to seek to recover insurance proceeds in respect connection with making an indemnification claim under this Article 9 or indemnities from third parties, or (ii) in the case of Third Party Claims, by any matter amount actually recovered by the Indemnified Party pursuant to counterclaims made by the Indemnified Party directly relating to the extent that the matter or circumstance facts giving rise to such liability was DisclosedThird Party Claims. In the event an Indemnified Party receives any recovery from insurers or otherwise with respect to such Damages after an Indemnifying Party has made a payment in respect of such Damages, the Indemnified Party as the case may be, shall refund to the Indemnifying Party the amount actually received by it (net of any expenses incurred by such Person in collecting such amounts and net of any increase in premiums).
(f) If Except for the Buyer pursuant to Section 1.3(b)(ii), no Person (including any Claim Seller) shall have any obligation to fund the Indemnification Escrow Account and title and all rights to all unencumbered funds in the Indemnification Escrow Account not subject to any pending or finally decided claims against the Warrantors is notified to them, the Warrantors (other than the Company) Indemnification Escrow Account shall (so far as they are able) afford and procure that the Company affords transfer to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for Sellers on the purpose of ascertaining day that is twelve (12) months after the position.
(g) Any Claim shall be deemed to be withdrawn (Closing Date, if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authorityapplicable, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice accordance with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedEscrow Agreement.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Securities Purchase Agreement (Hydrofarm Holdings Group, Inc.)
Limitations on Liability. (a) Except for any claims under the Warranty Agreement (where Section 8.3(a)(i) shall not apply), no Seller shall have any liability under Section 8.1 unless and to the extent:
(i) a claim has been notified by the Purchaser to such Seller (or, as the case may be, the Sellers' Agent) in writing on or before the earlier of (a) the expiry of the applicable statute of limitation and (b) December 22, 2026; and
(ii) if the relevant claim has not been agreed by the concerned Seller(s), Proceedings have been brought against the concerned Seller(s) within six (6) months of it being notified in accordance with Paragraph (i) above.
(b) In the event of a breach or alleged breach of this Agreement by any of the Sellers, the Purchaser shall not be entitled to rescind this Agreement or to treat this Agreement as terminated but shall only be entitled to claim for a partial repayment of the Closing Purchase Price in accordance with this Agreement in respect of such matter.
(c) In calculating the amount which may be due and payable by the Sellers as a result of any claim brought by the Purchaser pursuant to this Agreement, there shall be deducted the amount of any corresponding cash-effective Tax Benefits arising directly of an indemnified Loss.
(d) If the Purchaser is entitled to a claim against more than one Seller, the amount claimed by the Purchaser against any individual Seller under this Agreement shall not exceed the relative share of such Seller expressed as a percentage of the claimed amount calculated on the basis of such Seller's Allocable Portion in the Purchase Price in relation to the sum of all concerned Sellers' Allocable Portion in the Purchase Price among themselves.
(e) The limitations set out aggregate liability of the Sellers (collectively) under this Agreement shall not exceed an amount equal to the Closing Purchase Price and the aggregate liability of each Seller under this Agreement shall not exceed an amount equal to the Seller's Allocable Portion of the Closing Purchase Price payable to such Seller.
(f) The Sellers shall not be liable to the Purchaser for any facts or matters disclosed to the Purchaser in this clause 9.6 Agreement, in the Warranty Agreement or the Disclosed Information, provided, however, that the foregoing shall not apply to a claim under this agreement against the Warrantors warranties set out in Sections 4.1, 4.2, 4.3, 4.5, and 4.6.
(g) The Sellers shall not be liable to indemnify the Purchaser for Losses in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) representations and warranties given by the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable Sellers under Article 4 if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter Purchaser has been compensated by the W&I Insurance or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claiminsurance mechanism.
(h) The Warrantors For the avoidance of doubt, any limitations or exclusions of the Sellers' liability set forth in this Section 8.3 shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change apply in the published practice case of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
fraud or wilful misconduct (ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practicedol).
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Purchaser Indemnified Parties’ right to indemnification under Section 5.2 shall be subject to the following limitations: (i) Purchaser shall not have the right to be indemnified pursuant to Section 5.2 unless and until Purchaser shall have incurred, on a cumulative basis following the Closing, Losses in excess of $2,025,000 (the “Deductible”) in which event the right to be indemnified shall apply to all Losses in excess of the Investors in respect amount of any Claim shall only be enforceable if the Investors give written notice Deductible, but subject to the Warrantors other terms and limitations in this Agreement and (giving so far as practicable ii) the aggregate amount of Losses for which the Equityholders shall be obligated to provide indemnity under Section 5.2 shall not exceed the Indemnity Escrow Fund plus the right to offset against the Earnout Amount (if any) that becomes due and reasonable details payable under this Agreement but has not yet been paid (the “Cap”); provided that any Losses resulting from a breach of the ClaimFundamental Representations, from Section 5.2(c) on or before and in the date being six (6) months from case of actual fraud shall not be subject to the date of completion Cap and signing will instead in no event exceed the aggregate amount of the audit Merger Consideration. In furtherance of the foregoing, the maximum aggregate amount of Losses for which the financial year ended 31 March 2007Purchaser Indemnified Parties as a group may be entitled to indemnification under this Agreement from a specific Equityholder shall in no event exceed the aggregate amount of cash proceeds actually received by such Equityholder in his/her/its capacity as an Equityholder pursuant to this Agreement plus such Equityholder’s allocable portion of the Earnout Amount, if any, which such allocable portion shall be subject to offset by Purchaser.
(b) The Warrantors shall not be liable Notwithstanding anything in respect this Agreement to the contrary, no breach of any Claim under representation, warranty or covenant contained in this Agreement shall give rise to any right on the Warranties unless part of Purchaser, after the total cumulative liability consummation of the Warrantors in respect of all such Claims exceeds £25,000 (in which event Transaction, to rescind this Agreement or the Warrantors shall be liable for the whole of such liability and not merely for the excess)Transaction.
(c) Where there have been breaches Notwithstanding anything in this Agreement to the contrary, the amount of any Losses payable by the Warranties then Equityholders in accordance with this Section 5 shall be net of any alternative insurance proceeds or indemnification proceeds reasonably available, directly or indirectly, to the Investors shall not be entitled Purchaser Indemnified Parties with respect to recover from any Warrantor under such Losses less the Warranties in respect aggregate amount of all costs and expenses incurred by the Purchaser Indemnified Parties in connection with the recovery of such breaches more than:
proceeds (including payment of deductibles and self-insured retention amounts) and less the present value of all insurance policy premium increases reasonably anticipated therefrom. If Purchaser actually receives any insurance proceeds or indemnification proceeds after an indemnification payment is made to it by the Equityholders under this Section 5, Purchaser shall as promptly as practicable deliver to the Escrow Agent for deposit to the Escrow Fund the amount of such proceeds at such time or times as and to the extent that such proceeds are realized by Purchaser less the aggregate amount of all costs and expenses incurred by the Purchaser Indemnified Parties in connection with the recovery of such proceeds (including payment of deductibles and self-insured retention amounts) and less the present value of all insurance policy premium increases reasonably anticipated therefrom; provided, however, that if the Escrow Fund no longer exists, Purchaser shall (i) in respect pay to the Paying Agent for further distribution to the Stockholders and Warrantholders such amount payable to the Stockholders and Warrantholders by means of the Founder, a total wire transfer of 1 x his compensation received from the Company in the year following Completion;
immediately available funds and (ii) pay to its payroll provider such amount payable to holders of Vested Options directly and instruct such payroll provider to deliver such payments to the holders of Vested Option in respect the next regularly scheduled payroll of the CompanySurviving Corporation, a total sum equal each in accordance with such Equityholder’s Percentage as set forth on the Payment Schedule. Purchaser shall use commercially reasonable efforts to recover insurance proceeds or any other amounts from third parties (including, without limitation, under the aggregate Preference Issue Price paid R&W Insurance Policy), related to any Losses for the Investor Shareswhich indemnification is sought pursuant to this Section 5.
(d) The Investors shall not be Any Loss for which a Purchaser Indemnified Party is entitled to recover from indemnification under this Section 5 shall be determined without duplication of recovery by reason of the Warrantors under the Warranties state of facts giving rise to such Loss constituting a breach of more than once in respect of the same damage sufferedone representation, warranty or covenant.
(e) The Warrantors Any Losses of a party pursuant to this Section 5 shall be under no liability under the Warranties in respect of any matter disregarded to the extent that such Losses were specifically accrued in connection with the matter determination of the Closing Cash, Closing Indebtedness, Closing Working Capital, or circumstance giving rise to such liability was DisclosedClosing Company Transaction Expenses.
(f) If For purposes of this Section 5, for any Claim against representation or warranty that is limited by the Warrantors is notified to themwords “Material Adverse Effect,” “material” or by any similar term or limitation, the Warrantors (other than failure of such representation or warranty to be true and correct and the Company) amount of Losses subject to indemnification hereunder shall (so far be determined as they are able) afford and procure that if the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the positionwords “Material Adverse Effect,” “material” or any similar term or limitation were not included therein.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings Notwithstanding anything in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement contrary and other than to the extent not envisaged or taken into account awarded in the preparation of the Business Plan save where such change is required to conform such policy or practice connection with generally accepted policies or practices or where such change is necessary to correct a Third Party Claim, Losses for which an improper policy or practice.
(i) The Warrantors Indemnified Party may seek indemnification under this Section 5 shall not include, and no party to this Agreement will be liable for any claim under the Warranties to the extent that the factanother party for, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantorspunitive damages.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”i) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim Spannabis shall only be enforceable if the Investors give written notice obligated to the Warrantors (giving so far as practicable the amount indemnify any Indemnified Persons for Losses that equal or exceed $100,000 and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007then only with respect to such excess.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the CompanyEXCEPT FOR THIRD-PARTY CLAIMS UNDER ANY INDEMNITY PROVISION HEREIN, a total sum equal to the aggregate Preference Issue Price paid for the Investor SharesIN NO EVENT SHALL ANY PARTY, WHETHER HIGHTIMES, PURCHASER OR SPANNABIS, BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) Notwithstanding anything to the contrary in this Article V, and except for any change acts or omissions by Spannabis that constitute fraud, violation of Law or willful misconduct, in the event Spannabis becomes obligated to indemnify any accounting policy Indemnified Persons for Losses, Spannabis shall satisfy such indemnification obligations as follows: (i) first, by paying all or practice a portion of the Company made on and/or after amount of such Losses in immediately cash in available funds to the date applicable Indemnified Person, up to a maximum of this Agreement USD $4,000,000, and (ii) next, to the extent not envisaged such indemnified obligations exceed USD $4,000,000, by paying all or taken into account in the preparation a portion of the Business Plan save where amount of such change is required to conform such policy or practice Losses by surrendering for redemption a number of Spannabis’ Subject Shares of Hightimes with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties a value equal to the extent that the factamount of such Losses, matter, event or circumstance giving rise to such claim is remediable and is remedied by or which Subject Shares will be valued at the expense greater of (x) the Warrantors within thirty price per share attributed to the Subject Shares or (y) the average closing prices of Hightimes for the five (5) trading days of preceding the date on which written notice such Subject Shares are surrendered; provided, however, that in no event shall Spannabis be required to surrender more than the total number of such claim is given Subject Shares issued to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties Spannabis pursuant to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedto satisfy any indemnification claims hereunder.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Any indemnification to which the Purchaser Indemnified Parties may be entitled pursuant to this Article 10 or Article 11 will be satisfied exclusively by payment from the Indemnity Escrow Fund or by claims made by the Purchaser under the R&W Insurance Policies, except the Sellers shall remain responsible for all indemnifiable Losses arising out of, relating to or incurred by reason of (i) Seller Fraud, (ii) breach of covenants that by their respective terms anticipate performance following the Closing Date, or (iii) any breach of the Investors Seller Fundamental Representations (in respect of any Claim shall only be enforceable if the Investors give written notice each case, to the Warrantors (giving so far as practicable extent the amount and reasonable details of Losses associated with such claim are not paid under the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007R&W Insurance Policies).
(b) Notwithstanding anything to the contrary contained in this Agreement:
(i) the Purchaser Indemnified Parties will not be entitled to indemnification with respect to any individual claim or series of claims having the same nature or origin where the Losses relating thereto are less than $200,000, and then the Purchaser Indemnified Parties shall be entitled to indemnification with respect to the full amount of such claim, it being understood that such items less than $200,000 will not be aggregated for purposes of calculating the Deductible in clause (ii) below; provided, however, that the limitation set forth in this Section 10.5(b)(i) shall not apply in the case of Seller Fraud, breach of a covenant or agreement, to any indemnification obligation of the Sellers arising out of or resulting from, any breach of the Seller Fundamental Representations or to an indemnification claim under Section 11.1 for Excluded Taxes;
(ii) the Purchaser Indemnified Parties will not be entitled to indemnification until the aggregate amount of Losses to which the Purchaser Indemnified Party would (but for this clause (ii)) be entitled exceeds $3,275,000.00 (such amount being the “Deductible”), and then only to the extent of such excess over the Deductible; provided, however, that the Deductible shall not apply in the case of Seller Fraud, breach a covenant or agreement, to any indemnification obligation of the Sellers arising out of or resulting from, any breach of the Seller Fundamental Representations or to an indemnification claim under Section 11.1 for Excluded Taxes;
(iii) other than any indemnification obligation of the Sellers arising out of or resulting from, any breach of the Seller Fundamental Representations, breach of a covenant or agreement or Seller Fraud, the aggregate amount with respect to which the Purchaser Indemnified Parties will be entitled to indemnification by the Sellers pursuant to this Agreement will not exceed the Indemnity Escrow Amount. The Warrantors aggregate amount with respect to which the Purchaser Indemnified Parties will be entitled to indemnification by the Sellers pursuant to this Agreement in respect of inaccuracies in or breaches of Seller Fundamental Representations shall not exceed the Final Purchase Price; and
(iv) the right to indemnification or any other remedy based on representations, warranties, covenants and agreements in this Agreement shall not be liable in affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The waiver of any Claim under condition based on the Warranties unless accuracy of any representation or warranty, or on the total cumulative liability performance of or compliance with any such covenant or agreements, will not affect the Warrantors in respect of all right to indemnification or any other remedy based on such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess)representations, warranties, covenants or agreements.
(c) Where there have been breaches In addition to the limitations set forth in this Section 10.5, with respect to any claim for indemnification by a Purchaser Indemnified Party under this ARTICLE 10 regarding any breach of any representation and warranty set forth in Section 5.15 (Environmental Matters), the Warranties then the Investors shall Purchaser Indemnified Parties will not be entitled to recover from indemnification for any Warrantor under Loss to the Warranties in respect extent such Loss arises out of all such breaches more than:
or as a result of: (i) in respect any voluntary notice or disclosure by any Purchaser Indemnified Party to any Governmental Authority or third party of any Release of Hazardous Material or any other environmental conditions or matters at the FounderReal Property, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) the performance at the Real Property of any environmental sampling or testing, including a Phase II environmental investigation, by or on behalf of any Purchaser Indemnified Party after the Closing Date, unless, in respect the case of (i) or (ii), such notices or actions are (A) required by applicable Law, an order from a Governmental Authority or to respond to a third party claim initiated by any Governmental Authority or third party, (B) required to address subsurface conditions identified in connection with any construction, development, demolition or renovation activities undertaken by the Acquired Companies or (C) undertaken to address an imminent and substantial endangerment to human health or the environment discovered in the ordinary course of business; or (iii) any change from the current industrial use of the CompanyReal Property after the Closing; provided, a total sum equal however, that in each case, the Sellers and its Affiliates shall have no Liability for any such Loss to the aggregate Preference Issue Price paid for extent that the Investor SharesPurchaser Indemnified Parties, or any other Person after Closing, contribute to or exacerbate the condition or circumstance forming the basis of such Loss.
(d) The Investors amount of any Losses (which shall take into account any reasonably anticipated offsetting net Tax benefits or detriments, if any) for which indemnification is provided pursuant to this Article 10 or Article 11 will be net of any amounts actually recovered by the Indemnified Party under any insurance proceeds, indemnification payments, contribution payments or reimbursements receivable by, or payable in kind to, the Indemnified Party with respect to such Losses less any related deductibles, out of pocket fees and expenses, or amounts paid, incurred or suffered by such Indemnified Party in connection with recovering such amount. In connection therewith, if, at any time following any indemnification payment pursuant to this Agreement, the Indemnified Party receives any insurance proceeds, indemnification payments, contribution payments or reimbursements relating to the circumstances giving rise to such indemnification payment, except to the extent of any Losses not be entitled covered by such proceeds, payments or reimbursements, the Indemnified Party will promptly remit to recover from the Warrantors under Indemnifying Party such proceeds, payments or reimbursements in an amount not to exceed the Warranties more than once in respect amount of the same damage sufferedcorresponding indemnification payment made by the Indemnifying Party. The Purchaser will use (and will cause its Affiliates to use) reasonable best efforts to collect the proceeds of any available insurance and other available sources of indemnification payments, contribution payments or reimbursements that would have the effect of reducing any Losses (in which case the net proceeds thereof will reduce the Losses).
(e) The Warrantors shall Notwithstanding anything to the contrary in this Agreement, any amounts payable pursuant to the indemnification obligations under this Article 10 will be paid without duplication and in no event will any party hereto be indemnified under no liability different provisions of this Agreement for Losses that have already been paid or otherwise taken into account under this Agreement. Without limiting the Warranties in respect generality of the foregoing, the Purchaser or the Purchaser Indemnified Parties will not make any matter claim for indemnification under this Article 10 to the extent the amount of such Loss is taken into account as a Current Liability or other reduction in the calculation of any adjustment to the Purchase Price, as finally determined pursuant to Section 2.2; provided that the matter or circumstance giving rise foregoing shall not limit any Purchaser Indemnified Party’s right to indemnification under this Article 10 with respect to any Losses indemnifiable under this Article 10 in excess of what was reflected in such liability was Disclosedadjustment to the Purchase Price.
(f) If The Indemnified Party will use its reasonable best efforts to mitigate any Claim against the Warrantors is notified to them, the Warrantors Losses (other than the Company) shall (so far as they are able) afford and procure that the Company affords those for which any Purchaser Indemnified Party has recourse against any R&W Insurance Policy pursuant to the Investors and their advisers terms thereof) with respect to which it may be entitled to seek indemnification pursuant to this Agreement. This provision shall not however require the Indemnified Party to mitigate Losses once all reasonable opportunities and facilities amounts in the Indemnity Escrow Fund have been paid out to inspect all relevant books and records and to take copies of them for the purpose of ascertaining Purchaser or Seller in accordance with the positionterms thereof.
(g) Any Claim shall In no event will Indemnified Party be deemed entitled to recover for any Losses for general and administrative time or other overhead expenses that are not paid to a third party. Purchaser Indemnified Persons will have no right to make a claim for any Loss to the extent it is primarily a possible or potential Loss that the Purchaser Indemnified Parties believe may be withdrawn (if it has not asserted rather than a Loss that has, in fact, been previously satisfied, settled paid or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of incurred by the giving of written notice of the ClaimPurchaser Indemnified Parties.
(h) The Warrantors shall not be liable for any Claim under the Warranties Notwithstanding anything to the extent that it arisescontrary herein, neither any revocation, cancellation or is increased or extended modification of any R&W Insurance Policy, nor any inability of, nor any denial by:
(i) , the R&W Insurer to pay any change Losses contemplated by any R&W Insurance Policy, shall result in Liability under this Article 10 to legislation, any increase in rates of taxation the Sellers or any change of their respective Affiliates which is in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date excess of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation Liability of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of Sellers contemplated under this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceArticle 10.
(i) The Warrantors shall not be liable for any claim under For purposes of calculating the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect amount of any Claim under Losses arising from any breach of any representation or warranty subject to indemnification hereunder, the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express representations and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of warranties set forth in this Agreement and requested from the Investors and/or a BVP Director but refusedwill be read without regard to all references to “material”, “Material Adverse Effect” or similar qualifications as to materiality set forth herein.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim An Indemnifying Party shall only be enforceable obligated to indemnify any Indemnified Persons under Section 8.01 above for (i) Losses that equal or exceed $150,000 (the “Deductible”) in the aggregate and after which time an Indemnified Person shall be indemnified for Losses in excess of the Deductible and (ii) any individual or series of related Losses that equal or exceed $150,000, which Losses shall be counted towards the Deductible (for the avoidance of doubt, Losses associated with any claim for which indemnification is unavailable hereunder solely by reason of the limitation described in the foregoing clause (ii) will not be counted towards determining if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Deductible has been reached).
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect aggregate amount of all such Claims exceeds £25,000 (in Losses for which event the Warrantors Owner shall be liable for pursuant to Section 8.01 above shall not exceed $1,575,000 in the whole aggregate (the “Indemnity Cap”), provided, that, if the Losses are based on Section 5.02, Section 5.03, or intentional fraud, the Indemnity Cap shall be increased to as much as the total amount of such liability and not merely for the excess)Merger Consideration.
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
EXCEPT FOR THIRD-PARTY CLAIMS UNDER ANY INDEMNITY PROVISION HEREIN, ABSENT FRAUD, IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (i) in respect of the FounderINCLUDING NEGLIGENCE), a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the CompanyARISING IN ANY WAY OUT OF THIS AGREEMENT, a total sum equal to the aggregate Preference Issue Price paid for the Investor SharesWHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) The Investors Notwithstanding anything to the contrary in this Agreement, Owner shall not be entitled liable pursuant to recover from Section 8.01 above for any Taxes assessed by any Governmental Authority by reason of adjustments to the Warrantors Company’s cost of goods sold or inventories or the disallowance of any costs or expenses under the Warranties more than once in respect Section 280E of the same damage sufferedCode, nor for Losses incurred in any Tax audit, litigation or other proceeding resulting in any such assessment.
(e) The Warrantors Notwithstanding anything to the contrary in this Article VIII, and except for any acts or omissions by the Owner that constitute fraud, violation of Law or willful misconduct or failure to pay Taxes required to be paid by the Company or the Owner, in the event the Owner becomes obligated to indemnify any Indemnified Persons for Losses, the Owner shall pay all or a portion of the amount of such Losses by surrendering in the following order, (i) up to the Holdback Amount, (A) that amount of the Hightimes Common Stock received by such Owner, which shall be under no liability under valued at $1.00 per share, equal to such Losses, if a Merger Event has not occurred, or (B) that amount of Merger Event Common Stock received by such Owner, which shall be valued at the Warranties average closing prices of Hightimes for the five (5) trading days preceding the date on which such Merger Event Common Stock was surrendered, equal to such Losses, if a Merger Event has occurred, and (ii) the applicable balance of the Merger Shares received by such Owner, up to the amount of such Losses, subject, however, to the Indemnity Cap (each applicable amount, a “Recourse Amount”). The source of recovery for Losses of Hightimes and its Indemnified Persons pursuant to Section 8.01 above shall be recourse against the Holdback Amount; provided that to the extent the Recourse Amount exceeds the amount available in respect of any matter the Holdback Amount or if the Holdback Amount has been released to the Owner after the six-month Holdback Period, or to the extent that any acts or omissions by the matter or circumstance giving rise Owner constitute intentional fraud, such source of recovery shall be the Merger Shares received by such Owner up to such liability was Disclosedthe extent of the Recourse Amount.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) Any Losses for indemnification under this Agreement shall (so far as they are able) afford and procure that the Company affords be determined without duplication of recovery due to the Investors and their advisers all reasonable opportunities and facilities facts giving rise to inspect all relevant books and records and such Losses constituting a breach of more than one representation, warranty, covenant or agreement, or being indemnifiable pursuant to take copies more than one clause of them for the purpose of ascertaining the positionSection 8.01 above.
(g) Any Claim The Owner shall not be deemed to be withdrawn (if it has not been previously satisfied, settled liable under this Article VIII for any Losses based upon or withdrawn) unless legal proceedings arising out of any inaccuracy in respect thereof have been commenced within nine months or breach of any of the giving of written notice representations or warranties of the ClaimCompany and the Owner contained in this Agreement if Hightimes had knowledge of such inaccuracy or breach prior to the Closing.
(h) The Warrantors shall not be liable for any Claim under the Warranties Payments by an Indemnifying Party pursuant to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable Section 8.01 in respect of any Claim under the Warranties Loss shall be reduced by an amount equal to the extent that it arises, any Tax benefit realized or is increased or extended by:
(i) any action or omission reasonably expected to take action be realized as a result of such Loss by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedIndemnified Person.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. 4.1 The limitations set out in this clause 9.6 liability of the Vendors under the Tax Covenant shall be reduced if and to the extent that the Liability to Taxation shall have been recovered under the Warranties or under any other part of the Tax Covenant or Agreement (and vice versa).
4.2 The Vendors shall not apply be liable under the Tax Covenant or for breach of the Tax Warranties (treating the relevant loss giving rise to a claim under this agreement against the Warrantors in respect of a breach of a Tax Warranty (as if, for the purposes of this paragraph 4, it was a “Claim”liability) which is (or if and to the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantorsextent that:
(a) The rights of the Investors a specific allowance, provision or reserve (excluding any allowance provision or reserve made in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(ideferred Tax) in respect of the Founder, a total of 1 x his compensation received from the Company liability in question was included in the year following CompletionCompletion Accounts or payment or discharge of it was taken into account therein;
(iib) the liability in respect question was paid on or before Completion and payment of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.reflected in the Completion Accounts;
(fc) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings liability in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, question arises or is increased or extended byas a result of:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this AgreementTaxation;
(ii) any change in the Belgian or foreign law or the judicial interpretation of Belgian or foreign law;
(iii) a change in, or withdrawal of, any published practice or procedure or concession of any Tax Authority;
(iv) any change in accounting reference date practice or principles or any change in the bases on which the accounts of the relevant Group Company are prepared except in either case in order to comply with generally accepted accounting practice to the extent applicable to the relevant Group Company immediately before Completion; or
(v) any change in the date to which the relevant Group Company makes up its accounts, announced and made on and/or in any such case after the date of this Agreement Completion;
(d) the liability in question would not have arisen but for a voluntary act or omission carried out or effected by the Purchaser or any member of the Purchaser's Tax Group at any time or a Group Company at any time after Completion which the Purchaser knew or ought reasonably to have known would give rise to the extent not envisaged liability in question, other than any act or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy omission carried out or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended byeffected:
(i) any action under a legally binding commitment created on or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majoritybefore Completion;
(ii) in order to comply with any action Applicable Law or omission to take action where consent generally accepted accounting practices or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.principles;
(kiii) If in the ordinary and normal course of the business carried on by that Group Company immediately prior to Completion; or
(iv) in accordance with the written request of the Vendors; or
(e) the Purchaser or any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment Group Company has already been compensated without cost in respect thereof until of such time as such contingent liability ceases Liability to be contingent and becomes an actual liabilityTaxation.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors Investor for indemnification shall be liable for limited to the whole of such liability and not merely for the excess).
(c) Where there have been breaches amount of the Warranties then cash consideration received by the Investors Investor pursuant to Section 2(b). The liability of each Individual Seller for indemnification shall not be entitled limited to recover from any Warrantor under an amount equal to such Individual Seller's pro rata share, based on his or her respective percentage ownership of Company Shares set forth in the Warranties in respect Disclosure Schedule, of all such breaches more than:
an amount equal to (i) in respect the market value of the FounderClosing Shares held by such Seller on the date such indemnity obligation is required to be satisfied (including Closing Shares then subject to the Lock-Up and Pledge Agreement), a total of 1 x his compensation received from the Company in the year following Completion;
plus (ii) the market value on such date of any Closing Shares previously sold other than in respect arms'-length transactions, plus (iii) the net sale proceeds received by such Seller from the previous sale of Closing Shares in arms'-length transactions, plus (iv) an amount equal to such Individual Seller's pro rata portion of the Companycash value specified in Section 2(d) for the Contingent Payments, a total sum equal if any, to the aggregate Preference Issue Price paid for extent paid. Notwithstanding the Investor Shares.
(d) The Investors shall not be entitled to recover from foregoing provisions, however, the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no Sellers will have indemnification liability under the Warranties in respect of any matter this Agreement only if and to the extent that the matter aggregate amount of Losses suffered by the Buyer exceeds an amount equal to $300,000 (excluding for purposes of calculating such $300,000 threshold those Losses ("De Minimis Losses") that result from a single, unrepeated breach of a single representation, warranty, or circumstance giving rise covenant with respect to which the total amount of Losses resulting from such breach is less than $5,000) (the "Indemnity Threshold"); provided, that after the aggregate amount of Losses suffered by the Buyer 39 exceeds the Indemnity Threshold, all Losses suffered by the Buyer in excess of the Indemnity Threshold (including De Minimis Losses) shall be subject to Sellers' indemnification obligations; and provided, further, that such Indemnity Threshold shall not apply to any Seller's breach of the covenant set forth in Section 2(a) or any of the representations and warranties set forth in Section 3(a). The liability of the Buyer to each Seller for indemnification shall be limited to an amount equal to such liability was Disclosed.
(f) If any Claim against Seller's pro rata portion of the Warrantors is notified cash value, as of the Closing Date, of the purchase price paid to them, all of the Warrantors (other than the Company) shall (so far as they are able) afford and procure that Sellers for the Company affords to Shares plus the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them cash value specified in Section 2(d) for the purpose of ascertaining the positionContingent Payments.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Liabilities of each Provider and its Affiliates and Representatives, collectively, under this Agreement for any act or failure to act in connection herewith (including the Investors performance or breach of this Agreement) with respect to any Task-Specific Service, or from the sale, delivery, provision or use of any Task-Specific Service provided under or contemplated by this Agreement, whether in contract, tort (including negligence and strict liability) or otherwise, at law or equity, shall not exceed the amount of Charges received (and not previously paid back as a Liability hereunder) by the Provider (or its Affiliates) in respect of any Claim shall only be enforceable if the Investors give written notice Task-Specific Service for which the Liability arises hereunder in the twenty-four months immediately prior to the Warrantors date on which the Provider’s (or its applicable Affiliate’s or Representative’s) action or inaction (or, prior to the one-year anniversary of this Agreement if such action or inaction occurs during the first year of this Agreement) giving so far as practicable rise to the amount and reasonable details Liability arises or occurs; provided that, to the extent the Liability arises out of a Provider breaching this Agreement by not providing the Task-Specific Services required hereunder, then the Liability shall not exceed the greater of the Claim) on or before fees previously paid by such Recipient to such Provider for the date being six (6) twenty-four months from immediately prior to the initial date of completion and signing Provider’s failure to provide the required Service in respect of the audit Task-Specific Service from which such Liability flows or the estimated amount that such Provider would have been paid by such Recipient for such Task-Specific Services (if performed) for the financial year ended 31 March 2007same twenty-four month period.
(b) The Warrantors Notwithstanding anything to the contrary contained in the Separation and Distribution Agreement or this Agreement, the Provider shall not be liable to the Recipient or any of its Affiliates or Representatives, whether in respect contract, tort (including negligence and strict liability) or otherwise, at law or equity, for any special, indirect, incidental, punitive or consequential damages whatsoever (including lost profits or damages calculated on multiples of earnings approaches), which in any Claim under way arise out of, relate to or are a consequence of, the Warranties unless performance or nonperformance by the total cumulative liability Provider (including any Affiliates and Representatives of the Warrantors Provider and any unaffiliated third-party providers, in each case, providing the applicable Services) with respect to Task-Specific Services under this Agreement or the provision of, or failure to provide, any Task-Specific Service under this Agreement, including with respect to loss of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole profits, business interruptions or claims of such liability and not merely for the excess)customers.
(c) Where there have been breaches The Liabilities of each Provider and its Affiliates and Representatives, collectively, under this Agreement for any act or failure to act in connection herewith (including the Warranties then performance or breach of this Agreement) with respect to any Facility-Specific Service, or from the Investors sale, delivery, provision or use of any Facility-Specific Service provided under or contemplated by this Agreement, whether in contract, tort (including negligence and strict liability) or otherwise, at law or equity, shall not be entitled to recover from any Warrantor under exceed the Warranties in respect amount of all such breaches more than:
(i) Charges received by the Provider in respect of the Founder, a total of 1 x his compensation received from Facility-Specific Service for which the Company Liability arises hereunder in the year following Completion;
twenty-four months immediately prior to the date on which the Provider’s (iior its applicable Affiliate’s or Representative’s) action or inaction giving rise to the Liability (or, if later, Recipient’s first knowledge of any Liability related thereto) arises or occurs; provided that, to the extent the Liability arises out of a Provider breaching this Agreement by not providing the Facility-Specific Services required hereunder, then the Liability shall not exceed the greater of the fees previously paid by such Recipient to such Provider for the twenty-four months immediately prior to the initial date of Provider’s failure to provide the required Service in respect of the CompanyFacility-Specific Service from which such Liability flows or the estimated amount that such Provider would have been paid by such Recipient for such Facility-Specific Services (if performed) for the same twenty-four month period. Notwithstanding the foregoing limitations set forth in this Section 7.01(c), if any issue for cause of Liability hereunder (i) impacts the Recipient and its Affiliates in a total sum equal manner that is disproportionate to the aggregate Preference Issue Price paid effect on the Provider and its Affiliates or (ii) demonstrates that the Provider and its Affiliates are not acting with the same level of care as they would for their own business at such facility or other facilities on which the Provider relies in a manner similar to the Recipient’s reliance on such Facility-Specific Service, then the Provider’s Liability shall be limited to two-thirds (66.67%) of the indemnifiable Liabilities related thereto (with the Recipient responsible for the Investor Sharesother one-third (33.33%)).
(d) The Investors Notwithstanding anything to the contrary contained in the Separation and Distribution Agreement or this Agreement, in no event shall Provider (or its Affiliates or Representatives) have any Liability arising in connection with this Agreement (including under this Article VII) for any consequential, special, incidental, indirect or punitive damages, lost profits or similar items (including loss of revenue, income or profits, diminution of value or loss of business reputation or opportunity relating to a breach or alleged breach hereof); provided that (i) such limitation with respect to lost revenue, income or profits shall not limit any Person’s right to indemnification in accordance with this Agreement with respect to Liabilities that are the direct, proximate and reasonably foreseeable result of the breach of any representation, warranty, covenant or agreement in this Agreement by the other Party or its Affiliates and (ii) subject to the other limitations herein, each Party and its Affiliates shall be entitled to recover from indemnification, to the Warrantors under the Warranties more than once extent otherwise provided in this Agreement, with respect to all elements of the same damage sufferedany claim for damages asserted against such Party or any of its Affiliates by any unaffiliated Third Party.
(e) The Warrantors limitations in Section 7.01(a) and Section 7.01(c) shall be under no liability under the Warranties not apply in respect of any matter to Liability arising out of or in connection with the extent that gross negligence, willful misconduct, or fraud of or by the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed Party to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claimcharged.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
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Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to 10.1 No claim (a claim under this agreement against the Warrantors "Relevant Claim") in respect of any of the warranties set forth in Section 3 (the "Warranties") or the indemnity set forth in Section 8.2 may be made unless written notice detailing a specific breach of Warranty (a “Claim”) warranty and containing details of the general nature of the claim and approximate amount thereof shall have been given by BRAVO to Warranting Parties within two years of Closing.
10.2 Any Relevant Claim which is validly made within the required period under paragraph 10.1 shall (unless previously settled or withdrawn) be deemed to have been waived or withdrawn in the delay event that legal proceedings in discovery respect thereof are not issued and served on Warranting Parties within six months of which is) the consequence of fraud, or dishonesty on the part written notice of the WarrantorsRelevant Claim first being given aforesaid.
10.3 No Relevant Claim may be made and the Warranting Parties shall not be liable under any Relevant Claim unless:
(a) The rights the amount of the Investors in respect of any Claim shall only be enforceable if liability actually payable under the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.individual claim concerned exceeds $1,000; and
(b) The Warrantors shall not be liable the amount actually payable under such claim and under all other Relevant Claims (each being in respect excess of any Claim under $1,000) exceeds $10,000 in aggregate and, in that event, the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors Warranting Parties shall be liable for the whole of such liability that amount and not merely for the excess).
10.4 The maximum aggregate liability of the Parties under all Relevant Claims shall not exceed $100,000.
10.5 No Relevant Claim may be made if it would not have arisen but for some voluntary act, omission, transaction or arrangement of or carried out at the request of, by or on behalf of BRAVO or any of its affiliates after Closing and their respective successors in title where BRAVO or any of its affiliates knew or ought reasonably to have appreciated that such act, omission, transaction or arrangement would give rise to the liability or loss which, but for this Section 10.5, would have given rise to the right to make a Relevant Claim; provided that the provision of this Section 10.5 shall not apply where any action:
(a) is carried out pursuant to a legally binding obligation of WOIZE incurred prior to Closing;
(b) is carried our pursuant to an obligation imposed by any law, regulation or requirement having the force of law;
(c) Where there have been breaches takes place with the written approval of the Warranties then the Investors shall not be entitled Warranting Parties or pursuant to recover from this Agreement or any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal document executed pursuant to the aggregate Preference Issue Price paid for the Investor Shares.this Agreement; or
(d) The Investors shall not be entitled to recover from occurs in the Warrantors under the Warranties more than once in respect Ordinary Course of the same damage sufferedBusiness of WOIZE as carried on at Closing.
(e) The Warrantors shall 10.6 No Relevant Claim may be under no liability under the Warranties in respect of any matter made to the extent that the matter claim arises or circumstance giving rise to such liability was Disclosed.is increased as a result of all or any of:
(fa) If a cessation of or any Claim against change in the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure nature or conduct of any trade or business carried on by WOIZE where that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.cessation or change occurs on or after Closing;
(gb) Any Claim shall be deemed the failure by the Parties to be withdrawn comply with their obligations under any Transaction Document (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.defined herein as this Agreement and all documents referred to herein); and
(hc) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it ariseswould not have arisen but for the passing of, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in in, after Closing any law, rule, regulation, interpretation of the published law or administrative practice of any government, governmental department, agency, court or regulatory body.
10.7 If in respect of a revenue authority, in each case made on and/or after Relevant Claim the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date liability of the Company made on and/or after respective party is contingent or unquantifiable then the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors other party hereto shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express thereof unless and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such the contingent liability ceases to be contingent and becomes an actual liabilityor such liability is quantified; provided that in the case of such a claim duly notified within the relevant period referred to in Section 10.2 above the period of six months referred to in such paragraph shall commence on the date such liability becomes actual or is quantified but shall never extend beyond two years from the Closing.
10.8 The Parties shall not be entitled to recover damages or otherwise obtain reimbursement or restitution more than once in respect of any one breach of the Warranties or the subject matter thereof.
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Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Seller shall not be required to indemnify or hold harmless the Purchaser Indemnified Parties for any claim for indemnification for any Loss (or series of Losses related to the same underlying facts, events or circumstances) under Section 10.1 (other than Section 10.1(b) and Section 10.1(e), and with respect to breaches or inaccuracies in the Fundamental Representations) to the extent the aggregate liability of the Investors Seller to the Purchaser Indemnified Parties thereunder exceeds USD [***]; furthermore, the Seller shall not be required to indemnify or hold harmless the Purchaser Indemnified Parties for any claim for indemnification for any Loss (or series of Losses related to the same underlying facts, events or circumstances) under Section 10.1(g) unless and until the Purchaser Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least USD [***] in Losses in the aggregate, in which case, subject to the other applicable limitations herein, the Purchaser Indemnified Parties shall be entitled to recover all such Losses paid, incurred, suffered or sustained thereby from “dollar one;” and the Seller shall not be required to indemnify or hold harmless the Purchaser Indemnified Parties for any claim for indemnification for any Loss (or series of Losses related to the same underlying facts, events or circumstances) in respect of any Claim shall only be enforceable if the Investors give written notice breaches of or inaccuracies in representations and warranties set forth in Section 4.5 (Financial Statements), to the Warrantors (giving so far as practicable extent the amount and reasonable details aggregate liability of the Claim) on Seller to the Purchaser Indemnified Parties therefor or before thereunder exceeds USD [***]. The Purchaser shall not be required to indemnify or hold harmless the date being six (6) months from the date of completion and signing Seller Indemnified Parties for any claim for indemnification under this Agreement for Losses in excess of the audit Purchase Price. Notwithstanding anything to the contrary herein, no Party shall be required to indemnify or hold harmless the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, for any claim for indemnification for any Loss (or series of Losses related to the financial year ended 31 March 2007same underlying facts, events or circumstances) arising under this Agreement (other than in the event of Fraud or Willful Misconduct) to the extent the aggregate liability of such Party to the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, hereunder exceeds the Purchase Price.
(b) The Warrantors shall Notwithstanding anything in this Agreement to the contrary, for purposes of determining the amount of Losses arising from a breach of or inaccuracy in any representation or warranty in this Agreement, each representation and warranty in this Agreement (and Schedules and Exhibits hereto) will be read without regard and without giving effect to the terms or phrases “material,” “in all material respects,” “in any material respect,” “material adverse change,” “material adverse effect,” “Material Adverse Effect,” “which would not reasonably be liable expected to be material to the Company,” “except where the failure to so qualify has not had and would not reasonably be expected to have, individually or in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors aggregate, a Material Adverse Effect” or similar words or phrases contained in respect of all such Claims exceeds £25,000 representation or warranty (in which event the Warrantors shall be liable for the whole of as if such liability words or phrases were deleted from such representation and not merely for the excesswarranty).
(c) Where there The Purchaser shall be deemed to have been breaches waived on behalf of itself and all Purchaser Indemnified Parties their respective rights, and the Warranties then Purchaser Indemnified Parties shall have no recourse, under this Agreement (including under Article 7 and Section 8.1) against the Investors Seller or its Affiliates with respect to any Known Breach except as set forth under Section 10.1(c), (d) or (f). Notwithstanding the foregoing, the Purchaser shall not continue to be entitled to recover from any Warrantor and all rights under the Warranties in R&W Insurance Policy and its sole recourse with respect of all such breaches more than:
(i) in respect of to any Known Breach shall be against the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor SharesR&W Insurance Policy.
(d) The Investors shall not be entitled Notwithstanding anything to recover from contrary in this Agreement, nothing in this Agreement will limit the Warrantors under the Warranties more than once in respect Liability of the same damage suffereda Party to another Party for Fraud or Willful Misconduct.
(e) The Warrantors All indemnification payments made hereunder shall be under no liability under the Warranties in respect of any matter treated by all parties as adjustments to the extent that the matter or circumstance giving rise to such liability was DisclosedPurchase Price for Tax purposes unless otherwise required by Law.
(f) If an Indemnified Party’s claim under Section 10.1 may be brought under different sections of Section 10.1, then such Indemnified Party shall have the right to bring such claim under any Claim against the Warrantors is notified applicable section it chooses in accordance with Section 10.1; provided, however, that in no event shall any Indemnified Party be entitled to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months double recovery of the giving same amount and type of written notice Losses with respect to any particular incident, fact or event which resulted in Losses that are recoverable under Section 10.1 regardless of the Claimwhether there were breaches of more than one representation, warranty, covenant or agreement.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
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Limitations on Liability. The limitations set out in this clause 9.6 shall not apply Notwithstanding anything to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantorscontrary herein:
(a) The rights Seller shall not be liable to the Buyer for indemnifiable Losses under Section 6.2(a) until the aggregate amount of all Losses resulting therefrom exceed $1,000,000 (the “Threshold”), in which event Seller’s liability respecting any final judgment concerning such Losses shall be for both (i) the entire amount of Buyer’s Losses and (ii) Buyer’s reasonable, documented, out-of-pocket attorney’s fees paid in connection with seeking indemnification for such Losses; provided, however, that (A) the Threshold shall not apply with respect to any indemnifiable Losses arising from (x) a single event resulting in over $100,000 of Losses to Buyer, (y) breaches of the Investors covenant contained in Section 5.10 (the “True-up Covenant”) or (z) breaches of Seller’s obligations under Sections 2.6 and 2.7 and (B) none of such Losses described in the foregoing clause (A) shall count towards the satisfaction of the Threshold;
(b) in no event shall Seller’s aggregate liability arising out of or relating to Section 6.2(a) exceed the Indemnity Escrow Amount; provided that (i) Seller’s liability with respect to Losses resulting from, arising out of or relating to breaches of the True-up Covenant shall not be limited to the Indemnity Escrow Amount, and (ii) any amounts paid to Buyer pursuant to Section 6.8(b)(iii) or Section 6.8(b)(iv) shall not reduce the Indemnity Escrow Amount;
(c) in no event shall Seller be liable under Section 6.2(a) for any Losses arising from the negligence, strict liability of or violation of any Law by Buyer or any of its Affiliates;
(d) the amount of any Loss for which an Indemnified Party claims indemnification under this Agreement shall be reduced by: (i) any insurance proceeds actually received by such Buyer Indemnified Party with respect to such Loss; (ii) in the event such Buyer Indemnified Party failed to mitigate its Losses in accordance with Section 6.2(c), the amount by which such Loss would have been reduced had such Buyer Indemnified Party so mitigated such Loss; and (iii) indemnification or reimbursement payments actually received by such Buyer Indemnified Party from third parties with respect to such Loss, provided that such Buyer Indemnified Party shall use Reasonable Efforts to obtain recoveries from insurers, including title insurers, and other third parties in respect of this Section 6.4(d);
(e) if an Indemnified Party shall recover Losses in respect of a claim of indemnification under this ARTICLE VI, no other Indemnified Party shall be entitled to recover the same Losses in respect of a claim for indemnification;
(f) if the Indemnified Party receives any payment from an Indemnifying Party in respect of any Claim Losses pursuant to Section 6.2 and the Indemnifying Party could have recovered all or a part of such Losses from a third party, including any provider of insurance (a “Potential Contributor”) based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall only be enforceable if assign such of its rights to proceed against the Investors give written notice Potential Contributor as are necessary to permit the Warrantors (giving so far as practicable Indemnifying Party to recover from the Potential Contributor the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.such payment;
(bg) The Warrantors in no event shall Seller be liable under Section 6.2(a) for any Losses arising from any action or omission take or not taken by Seller at the request of or with the consent of Buyer;
(h) Seller shall not be liable in respect of any Claim claim for indemnification under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability Section 6.2(a) if and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far Buyer has Knowledge as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim which is remediable and is remedied by or at the expense subject of the Warrantors within thirty days claim; provided, however, that for purposes of this Section 6.4(h), Buyer shall be deemed to have Knowledge of the date facts, matters, events and circumstances set forth in the Data Room as of 5:00 P.M. California time on which written notice of December 12, 2014 and such claim is given other materials specifically disclosed to Buyer after December 15, 2014 and set forth on the WarrantorsDisclosure Schedule.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Except in the case of a Seller Unlimited Liability Matter, if Buyer and Sellers cannot mutually agree upon the settlement of such Noticed Claim, Buyer shall be deemed to have waived such Noticed Claim unless Buyer brings a court action with respect to such Noticed Claim on or prior to the thirtieth (30th) day following (i) the Outside Claim Date or (ii) in the case of a Tax Indemnity, the expiration of the Investors in respect applicable statute of any Claim shall only be enforceable if limitations for the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details assessment or collection of the Claim) applicable Taxes on or before which such Tax Indemnity is based; provided, however, the date being six (6) months from the date terms of completion and signing of the audit for the financial year ended 31 March 2007this sentence shall not be applicable with respect to Noticed Claims made by Buyer related to unresolved Third Party Claims.
(b) The Warrantors In no event shall not Sellers be liable in respect of for, or required to make any Claim under payment pursuant to Section 11.02 for any Seller Indemnifiable Damages suffered by Buyer Indemnified Parties unless and until the Warranties unless the total cumulative liability of the Warrantors in respect aggregate dollar amount of all such Claims Seller Indemnifiable Damages under this Agreement exceeds £25,000 Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), after considering any recovery Buyer actually obtains from any title or other insurance coverage or other remedies, if any, Buyer may have in which event connection with such claims (such amount, the Warrantors shall be liable for "Basket Amount"), and then only to the whole extent of such liability and not merely for excess; provided, however the excess).
(c) Where there have been breaches of maximum aggregate indemnification available to the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties Buyer Indemnified Parties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors representations or warranties by Sellers contained herein shall not be entitled to recover from exceed Five Million and No/100 Dollars ($5,000,000.00) (the Warrantors under "Seller Liability Cap") provided, further, that neither the Warranties more than once in respect of Basket Amount nor the same damage suffered.
(e) The Warrantors Seller Liability Cap shall be under no liability under the Warranties in respect of any matter apply to the extent that any indemnification is based on or attributable to the matter Tax Indemnity or circumstance giving rise to such liability was Disclosedany of the following (each a "Seller Unlimited Liability Matter"): (i) any breach of or inaccuracy in any of the representations and warranties of Sellers set forth in Section 6.01, Section 6.02, Section 6.03, Section 6.14, Section 6.16, or Section 6.17, (ii) willful misconduct, bad faith or fraud, (iii) the Sales Tax Audit, or (iv) the Existing Debt Indemnification, or (v) any Imputed Title Claims.
(fc) If In no event shall Buyer be liable for, or required to make any Claim against payment pursuant to Section 11.03 for any Buyer Indemnifiable Damages suffered by the Warrantors is notified Seller Indemnified Parties unless and until the aggregate dollar amount of all such Buyer Indemnifiable Damages under this Agreement exceeds the Basket Amount, and then only to themthe extent of such excess; provided, the Warrantors (other than the Company) shall (so far as they are able) afford and procure however, that the Company affords maximum aggregate indemnification available to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings Seller Indemnified Parties in respect thereof have been commenced within nine months of the giving all such breaches of written notice of the Claim.
(h) The Warrantors representations or warranties by Buyer contained herein shall not be liable for any Claim under exceed Five Million and No/100 Dollars ($5,000,000.00) (the Warranties "Buyer Liability Cap"); provided, further, that neither the Basket Amount nor the Buyer Liability Cap shall apply to the extent that it arises, any indemnification is based on or is increased or extended by:
attributable to any of the following (each a "Buyer Unlimited Liability Matter"): (i) any change to legislationbreach of or inaccuracy in any of the representations and warranties of Buyer set forth Section 7.01, any increase in rates of taxation or any change in the published practice of a revenue authoritySection 7.02, in each case made on and/or after the date of this Agreement Section 7.03, and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the factwillful misconduct, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arisesbad faith, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedfraud.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Parkway Properties Inc)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply Notwithstanding anything contained herein to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which contrary, liability is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantorslimited as follows:
(a1) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors OHL shall not be liable for any Claim loss or injury to Products stored, however caused, unless such loss or injury resulted from: (a) OHL’s breach of the agreement, (b) OHL’s failure to enforce Landlord’s compliance with its obligations under the Warranties to the extent that it ariseslease, (c) OHL’s negligence or is increased willful misconduct, (d) shrinkage in excess of 0.2% as provided in Section 10(E)(4) below and/ or extended by:
(ie) any change to legislation, any increase in rates of taxation or any change from other products in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice Facility that cause contaminant odors with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceCLIENT’s inventory.
(i2) The Warrantors Products are not insured by OHL against loss or injury however caused [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(3) CLIENT declares that damages or loss to Product resulting from OHL’s failure to exercise reasonable care as described in (A) above are limited to CLIENT’s landed wholesale cost per unit for Product damaged up to a maximum of $1,000,000 (one million dollars) per occurrence.
(4) CLIENT agrees to a 0.2% shrink allowance, based on the value of Products stored for a period of one year for loss due to damage, mysterious disappearance or other inventory shrink. Value of the Products is determined by the number of items received per year times the average CLIENT’s paid wholesale cost per item.
(5) OHL shall not be liable for any claim under the Warranties demurrage or detention, delays in unloading inbound cars, trailers or other containers, or delays in obtaining and loading cars, trailers or other containers for outbound shipment unless OHL has failed to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantorsexercise reasonable care.
(j6) The Warrantors Neither party shall not be liable for indirect, incidental, consequential, punitive, or exemplary damages, regardless of the nature of the claim being in respect contract, tort, or otherwise, and whether in law or in equity, whether the party in breach was advised of, or otherwise should have been aware of, the possibility of such damages. The foregoing is a separate, essential term of this agreement and shall be effective even in the event of the failure of any Claim under remedy, exclusive or not. In no event, however, will the Warranties preceding exclusions on remedies apply with respect to either party’s breach of the extent that it arisesconfidentiality provisions, any indemnification obligation pursuant to Section 9 - INDEMNIFICATION AND INSURANCE, or is increased or extended by:
(i) any action or omission to take action by misappropriation of the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedother party’s intellectual property.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations (a) Seller shall not have any liability for any indemnification under Section 10.1(a) (other than with respect to a breach by Seller of any Seller Fundamental Representation or a breach by the Company of the representations and warranties set out forth in Section 7.12) unless (i) the individual amount of any Loss for which a Claim Notice is delivered by Buyer to Seller under this Article 10 exceeds $200,000 (the “Indemnity Threshold”) and (ii) until the aggregate amount of all Losses for which a Claim Notice is delivered by Buyer to Seller under Section 10.1(a) (other than with respect to a breach by Seller of any Seller Fundamental Representation or a breach by the Company of the representations and warranties set forth in Section 7.12) that equal or exceed the Indemnity Threshold is greater than an amount equal to two percent (2%) of the Base Purchase Price (the “Indemnity Deductible”), in which case Seller shall only have liability under Section 10.1(a) for all such Losses that, individually, equal or exceed the Indemnity Threshold to the extent they exceed the Indemnity Deductible in the aggregate; provided that, notwithstanding anything to the contrary in this clause 9.6 Agreement, the foregoing limitations shall not apply to a claim under this agreement against the Warrantors in Seller’s liability for indemnification with respect of to a breach of Warranty (a “Claim”) which is (or by the delay in discovery of which is) the consequence of fraud, or dishonesty on the part Company of the Warrantors:
(a) The rights of the Investors representations and warranties set forth in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Section 7.32.
(b) The Warrantors Seller shall not be liable in have any liability for any indemnification under (i) Section 10.1(a) (other than with respect to a breach by Seller of any Claim under Seller Fundamental Representation or a breach by the Warranties unless the total cumulative liability Company of the Warrantors representations and warranties set forth in respect Section 7.12) in excess of all such Claims exceeds £25,000 the fifteen percent (15%) of the Base Purchase Price or (ii) this Agreement, in which event the Warrantors shall be liable for aggregate, in excess of an amount equal to one hundred percent (100%) of the whole of such liability and not merely for the excess)Base Purchase Price.
(c) Where there have been breaches The amount of any Losses subject to indemnification under Section 10.1 or Section 10.2 shall be calculated net of any insurance proceeds (net of direct collection expenses) realized by, or any indemnity, contribution or other similar payment actually received by, the Warranties then the Investors shall not be entitled to recover Indemnified Party from any Warrantor under the Warranties in Third Party with respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Sharesthereto.
(d) The Investors Buyer shall, and shall ensure that each Buyer Indemnified Party shall, and Seller shall, and shall ensure that each Seller Indemnified Party shall, use commercially reasonable efforts to mitigate or minimize liabilities under this Agreement upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any liabilities that are indemnifiable under this Agreement; provided, however, that such Indemnified Party shall not be entitled required to recover from incur expenses that are more than de minimis in nature or any risks that are extraordinary in nature or that otherwise unreasonably interfere with the Warrantors operations or activities of such Indemnified Party to mitigate or minimize any such liabilities. If an Indemnified Party fails to so mitigate any liabilities that are subject to indemnification under the Warranties more than once in respect preceding sentence, the Indemnifying Party shall have no liability for any portion of such liabilities that would reasonably be expected to have been avoided had the same damage sufferedIndemnified Party made such efforts.
(e) The Warrantors amount of any liabilities to which any Indemnified Party is entitled hereunder shall be under no liability under the Warranties determined without duplication of any other recovery hereunder in respect of any matter such liabilities and, in furtherance of the foregoing, the Parties acknowledge and agree that (i) to the extent that any matter results in the breach of more than one representation or warranty of a Party hereunder, the applicable Indemnified Parties shall only be entitled to a single recovery of the applicable liabilities arising out or resulting from such matter and (ii) neither Party shall have any obligation or circumstance giving rise liability under this Article 10 with respect to any amount to the extent such liability was Disclosedamount has already been taken into account and applied as an adjustment to the Purchase Price hereunder.
(f) If Notwithstanding anything herein or in any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Related Agreement to the extent not envisaged or taken into account in contrary, the preparation obligations and rights of the Business Plan; or
Parties hereunder, for purposes of calculating the dollar amount of any liabilities for which any Indemnified Party is obligated to indemnify or entitled to indemnity under Section 10.1(a) (iii) any change but not for purposes of determining whether a representation or warranty in any accounting policy or practice of the Company made on and/or after the date of this Agreement has been breached), all references to the extent not envisaged materiality, material adverse effect, Material Adverse Effect or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors similar qualifiers shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liabilitydisregarded.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Callon Petroleum Co)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice Notwithstanding anything contained herein to the Warrantors contrary, no Indemnifying Party shall have any indemnification obligations under this Article XII until such time as the aggregate Indemnified Losses for which the Acquiror Indemnified Parties are otherwise entitled to indemnification hereunder equals or exceeds $400,000 (giving so far as practicable the amount and reasonable details of "Basket"), at which point, the Claim) on or before the date being six (6) months from the date of completion and signing of the audit Indemnifying Party shall be liable for the financial year ended 31 March 2007full amount of all such Indemnified Losses without regard to the Basket.
(b) The Warrantors aggregate indemnification obligations under this Article XII shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability capped at 10% of the Warrantors in respect aggregate Merger Consideration. The rights of all such Claims exceeds £25,000 (in which event the Warrantors Acquiror Indemnified Parties to make claims against the escrowed shares and any proceeds thereof shall be liable for the whole sole and exclusive remedy of such Acquiror Indemnified Parties after the Closing with respect to any representation, warrant, covenant or agreement made by the Company under this Agreement and no former stockholder, optionholder, warrantholder, director, officer, employee or agent of the Company shall have any personal liability and not merely for hereunder to the excess)Acquiror Indemnified Parties after the Closing in connection with the Merger.
(c) Where there If any matters giving rise to a claim of Indemnified Losses pursuant to this Article XII by the Acquiror Indemnified Parties is reasonably likely to be covered by any insurance policy of Acquiror, then no amount shall be recovered pursuant to this Article XII unless and until such Acquiror Indemnified Parties shall have been breaches made all commercially reasonable efforts for a period of six months to obtain reimbursement for such Indemnified Loss under such insurance policy, and then only to the Warranties then extent aggregate insurance proceeds actually received by such Acquirior Indemnified Parties in respect of all Damages arising from such claim (less any premium adjustments and similar charges made as a result of making such claim) are less than such Damages; provided, however, that if no insurance proceeds are received after making such commercially reasonable efforts upon the Investors termination of such six month period, such Acquiror Indemnified Parties shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice full amount of such claim is given to the WarrantorsIndemnified Losses.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Merger Agreement (Friede John A)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(b) shall not apply, and Purchaser shall not be able to exercise any indemnification rights with respect thereto under this Section 6, except to the extent any Indemnification Claim where the Damages related to that Indemnification Claim (or series of Indemnification Claims arising from the same or substantially similar facts or circumstances) exceeds $5,000 (“Minimum Claim Amount”). If the amount of Damages for an individual Indemnification Claim (or series of Indemnification Claims arising from the same or substantially similar facts or circumstances) exceeds the Minimum Claim Amount, then the Purchaser Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Indemnity Escrow Fund against all Damages for such Indemnification Claim, regardless of the Investors in respect of any Minimum Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Amount.
(b) The Warrantors Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(b) shall not apply, and Purchaser shall not be liable in entitled to exercise any indemnification rights with respect of any Claim thereto under Section 6, except to the Warranties unless extent that the total cumulative liability aggregate amount of the Warrantors in respect of all such Claims Damages against which Purchaser Indemnified Parties would otherwise be entitled to be indemnified under Section 6.2(b) exceeds £25,000 $162,500 (in which event the Warrantors shall be liable for “Deductible”). If the whole aggregate amount of such liability and not merely for Damages exceeds the excess)Deductible, then Purchaser Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Indemnity Escrow Fund only against the portion of such Damages in excess of the Deductible.
(c) Where there Except for claims based on Seller’s fraud, (i) Seller’s aggregate liability for indemnification pursuant to Section 6.2(a) shall not exceed the sum of the Upfront Amount, the Deferred Payments, and the Milestone Payments actually received by the Seller (which are hereby deemed to include amounts offset by Purchaser pursuant to Section 1.5(f), Section 1.6(d) or another provision of this Agreement) and (ii) Seller’s aggregate liability for indemnification pursuant to Section 6.2(b) shall not exceed the amount remaining in the Indemnity Escrow Fund; provided, however, that if (x) Purchaser has delivered to Seller a valid Notice of Indemnification Claim with respect to a breach of an Other Seller Representation prior to the Representation Termination Date, (y) Purchaser has recovered amounts under the R&W Policy in respect of one or more Fundamental Representations or in respect of the obligations of Seller to pay or indemnify against certain Taxes under Section 7.1 and (z) the coverage limits of the R&W Policy have been exhausted such that Purchaser is unable to recover some or all the amount of Damages with respect to breaches of any Other Seller Representation, written notice of which is delivered to the Warranties then Seller prior to the Investors expiration of the original term of the R&W Policy, Seller’s aggregate liability for indemnification pursuant to Section 6.2(b) shall not exceed the lesser of (i) the amount of recoveries under the R&W Policy in respect of breaches of Fundamental Representations or in respect of the obligations of Seller to pay or indemnify against certain Taxes under Section 7.1, (ii) the amount of Damages in respect of Other Seller Representations Purchaser is unable to recover under the R&W Policy as the result of the recoveries described in the preceding clause (i) and (iii) five hundred thousand ($500,000).
(d) Except in the case of Seller’s fraud, the Purchaser Indemnified Parties shall be entitled to recover from any Warrantor under indemnification recourse for the Warranties following Indemnification Claims in respect accordance with the order of all such breaches more thanpriority set forth below:
(i) in respect of the FounderAny indemnification payment to which a Purchaser Indemnified Party is entitled resulting from an Indemnification Claim made under Section 6.2(a) shall be made: (A) first, as a total of 1 x his compensation received payment to such Purchaser Indemnified Party from the Company Indemnity Escrow Fund (to the extent cash remains held in the year following Completion;Indemnity Escrow Fund) until the Purchaser Indemnified Parties have suffered Damages that would be covered by the R&W Policy but for the exclusion thereunder of claims not exceeding the Retention Amount; (B) second, the Purchaser Indemnified Parties shall make a claim to recover such Damages under the R&W Policy in accordance with the terms thereof as contemplated by Section 6.3(e); and (C) third, any such remaining payment shall be made, at Purchaser’s election, (x) by Seller and/or (y) through Purchaser exercising its rights of setoff provided in this Agreement.
(ii) Any indemnification payment to which a Purchaser Indemnified Party is entitled resulting from an Indemnification Claim made under Section 6.2(b) shall be made: (A) first, as a payment to such Purchaser Indemnified Party from the Indemnity Escrow Fund (to the extent cash remains held in respect the Indemnity Escrow Fund) until the Purchaser Indemnified Parties have suffered Damages that would be covered by the R&W Policy but for the exclusion thereunder of claims not exceeding the Retention Amount; (B) second, the Purchaser Indemnified Parties shall make a claim to recover such Damages under the R&W Policy in accordance with the terms thereof as contemplated by Section 6.3(e) and (C) third, if the proviso to Section 6.3(c) is applicable, then any such remaining payment shall be made, at Purchaser’s election, (x) by Seller and/or (y) through Purchaser exercising its rights of setoff provided in this Agreement; and
(iii) Any indemnification payment to which a Purchaser Indemnified Party is entitled resulting from an Indemnification Claim made under Section 6.2(c) shall be made, at Seller’s election, (x) by Seller and/or (y) through Purchaser exercising its rights of setoff provided in this Agreement, provided, that if all amounts due to Purchaser resulting from an Indemnification Claim made under Section 6.2(c) have not been paid within twelve (12) months of the Companydate of resolution of such Indemnification Claim, a total sum equal then Seller shall pay Purchaser the remaining amounts due with respect to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage sufferedsuch Indemnification Claim on demand by Purchaser.
(e) The Warrantors If the Damages incurred with respect to an Indemnification Claim pursuant to Section 6.2(a) or Section 6.2(b) are covered by the R&W Policy, then Purchaser shall be under no liability under make a claim for recovery for such Damages in accordance with the Warranties requirements of the R&W Policy and respond in good faith and in a timely manner to any information requests from the insurer(s) with respect of any matter to the extent that the subject matter or circumstance giving rise to of such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Indemnification Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out (a) Notwithstanding anything to the contrary contained in this clause 9.6 Agreement, no party to this Agreement shall be entitled to indemnification pursuant to this Article XV and, if applicable, Section 9.6(d), unless and until its aggregate Damages shall be in excess of one hundred thousand dollars (US$100,000), at which time such party shall be entitled to indemnification for the full amount of its Damages to the extent such Damages exceed such amount. Notwithstanding anything in this Agreement to the contrary, the limitation in the preceding sentence shall not apply to a claim under this agreement against Purchaser’s or Parent’s indemnification obligations contained in Section 15.2(a) concerning any provisions contained in any Branch Lease assigning any liability to Seller in the Warrantors in respect event of a breach an assignment of Warranty (a “Claim”) which is (or such lease. In no event shall the delay in discovery of which is) the consequence of fraudDamages payable by Seller, individually, or dishonesty on by Purchaser and Parent, collectively, in the part of the Warrantors:
aggregate exceed forty million dollars (a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007US$40,000,000).
(b) The Warrantors shall amount of any Damages arising from a breach by Seller of the representations and warranties set forth in Section 6.8 due to the existence of a Lien which is not be liable in respect of any Claim under borrowed money and does not materially impair the Warranties unless the total cumulative liability continued use and operation of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors related Purchased Asset shall be liable for limited to the whole lesser of (i) the cost of satisfying or removing such Lien and (ii) the actual impairment to the Purchased Asset caused by the existence of such liability and not merely for the excess)Lien.
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
EACH OF THE PARTIES TO THE FULLEST EXTENT PERMITTED BY LAW IRREVOCABLY WAIVES ANY RIGHTS THAT THEY MAY HAVE TO PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT (i) in respect of the FounderINCLUDING, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the CompanyWITHOUT LIMITATION, a total sum equal to the aggregate Preference Issue Price paid for the Investor SharesLOST PROFITS), EXEMPLARY AND CONSEQUENTIAL DAMAGES IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER AGREEMENT, INSTRUMENT OR DOCUMENT CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS OR ACTIONS OF ANY OF THEM RELATING THERETO. NOTWITHSTANDING THE FOREGOING, IN THE EVENT A NONAPPEALABLE COURT ORDER REQUIRES A PARTY TO PAY A THIRD PARTY THAT IS NOT AN AFFILIATE SUCH DAMAGES AND SUCH DAMAGES ARE SUBJECT TO THE OTHER PARTY’S INDEMNIFICATION OBLIGATION CONTAINED IN THIS AGREEMENT AND AS LIMITED BY OTHER PROVISIONS IN THIS AGREEMENT, SUCH DAMAGES SHALL NOT BE SUBJECT TO THE LIMITATION ON LIABILITY CONTAINED IN THIS SECTION 15.4(c).
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Community Bank System Inc)
Limitations on Liability. Disclosure
12.1 The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors Vendor shall not be liable in respect of any a Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance facts and circumstances giving rise to the Claim are fairly disclosed in the Disclosure Letter.
12.2 The Vendor’s liability in respect of a Claim for breach of the Warranties shall be limited by the provisions of this clause 12. Without prejudice to this clause 12, for the avoidance of doubt such liability was Disclosedof the Vendor shall not be limited as a result of the disclosure of additional facts and circumstances after the date of this Agreement or matters of which the Purchaser became aware (or ought reasonably to have become aware) after the date of this Agreement.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) 12.3 The Warrantors Vendor shall not be liable for any General Claim under unless the Warranties Purchaser gives to the extent that it arisesVendor written notice containing a summary of the nature of the General Claim as far as is known to the Purchaser, on or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in before the published practice of a revenue authority, in each case made on and/or after date being the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date expiry of the Company made on and/or after third month following the date of this Agreement to the extent not envisaged or taken into account in the preparation end of the Business Plan; or
(iii) any change in any accounting policy or practice financial year of the Company made on and/or after Purchaser ending 31 December 2006, except for those matters having a legal prescription period greater than such period, in which case the date of this Agreement period shall be deemed to be extended until the extent not envisaged or taken into account in the preparation lapse of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) relevant legal prescription period. The Warrantors Vendor shall not be liable for any claim under Tax Warranty Claim unless the Warranties Purchaser gives written notice containing a summary of the nature of the Tax Warranty Claim as far as it is known to the extent that Purchaser to the fact, matter, event Vendor on or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of before the date on which written notice of such claim is given to the Warrantorsbeing four years from Completion.
(j) The Warrantors 12.4 A Claim shall not be liable enforceable against the Vendor and shall be deemed to have been withdrawn unless legal proceedings in respect of any such Claim under are commenced (by being issued and served) within nine months of service of notice of the Warranties to Claim on the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedVendor.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in Notwithstanding any other provision of this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more thanAgreement:
(i) The Buyer Indemnified Parties shall have the right to payment by Seller under Section 6(b)(i) only if the Buyer Indemnified Parties shall have incurred as to all inaccuracies and breaches indemnifiable Losses in respect excess of $500,000 (the “Deductible”); provided that, once the Buyer Indemnified Parties have incurred such indemnifiable Losses in excess of the FounderDeductible, a total they shall have the right to payment by Seller only to the extent such indemnifiable Losses exceed $250,000; provided, further, that the maximum aggregate obligation of 1 x his compensation received from Seller to the Company Buyer Indemnified Parties under Section 6(b)(i) shall not exceed $42,000,000 (the “Cap”). Notwithstanding anything to the contrary herein, the limitations contained in the year following Completion;provisos above shall not apply to (A) any indemnification for any Losses incurred by the Buyer Indemnified Parties for any intentional misrepresentation or fraudulent breach of a representation or warranty contained herein or in any Transaction Agreement, (B) any indemnification for any Losses incurred by the Buyer Indemnified Parties in connection with any Liability indemnified by Seller under Sections 6(b)(ii), (iii) and (iv) or (C) any indemnification for Losses incurred by the Buyer Indemnified Parties in connection with any Liability for breaches of Sections 3(a), (b), (c), (e) and (l).
(ii) The Seller Indemnified Parties shall have the right to payment by Buyer under Section 6(c)(i) only if the Seller Indemnified Parties shall have incurred as to all inaccuracies and breaches indemnifiable Losses in excess of the Deductible; provided that, once the Seller Indemnified Parties have incurred such indemnifiable Losses in excess of the Deductible, they shall have the right to payment by Buyer only to the extent such indemnifiable Losses exceed $250,000. Notwithstanding anything to the contrary herein, the limitation contained in the proviso above shall not apply to (A) any indemnification for any Losses incurred by the Seller Indemnified Parties for any intentional misrepresentation or fraudulent breach of a representation or warranty contained herein or in any Transaction Agreement, (B) any indemnification for any Losses incurred by the Seller Indemnified Parties in connection with any Liability indemnified by Seller under Sections 6(c)(ii) and (iii) or (C) any indemnification for Losses incurred by the Buyer Indemnified Parties in connection with any Liability for breaches of Sections 4(a), (b) and (c).
(iii) The indemnification provided in this Section 6 shall be the sole and exclusive remedy after the Closing for damages available to the Parties for breach of any of the representations and warranties, covenants (other than Sections 6(f) and 6(g)) or other obligations of the Parties contained herein; provided, however, that this exclusive remedy for damages does not preclude a Party from pursuing remedies under applicable Law for fraud or intentional misrepresentation.
(iv) Notwithstanding anything contained in this Agreement to the contrary, no Party shall be liable to the other Party or its Affiliates for special, consequential, punitive or exemplary Losses or damages; provided, however, that the forgoing shall not preclude (A) recovery by an Indemnified Party in respect of the Company, Losses directly incurred from Third-Party Claims or (B) a total sum equal to the aggregate Preference Issue Price paid Party from pursuing remedies under applicable Law for the Investor Sharesfraud or intentional misrepresentation.
(dv) The Investors amounts for which the Parties shall not be entitled to recover liable under Sections 6(b) and 6(c) shall be net of (A) any insurance recovered by the Indemnified Parties from their own insurance policies (it be understood that no such Indemnified Party shall be required make a claim with its insurance carrier for any such recovery) and (B) the Warrantors under the Warranties more than once in respect amount of the same damage sufferedapplicable Loss arising out of any item which a Party can demonstrate was included as an Account Payable or Accrued Expense in calculating Closing Net Working Capital. For the avoidance of doubt, no indemnification shall be required under this Agreement for any differences between reserves, estimates or accruals related to any item and the actual value or level of such item.
(evi) The Warrantors shall be under no liability under the Warranties in respect of Notwithstanding any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date provision of this Agreement to the extent not envisaged contrary, nothing in this Agreement shall eliminate, limit or taken into account in prohibit any Seller rights, and Seller shall retain all its rights, pursuant to Law, including common law and any applicable Environmental, Health, and Safety Requirements, to recover from any third party any Losses that are or may become the preparation subject of any claim for indemnification by any Buyer Indemnified Parties; provided that, upon the Business Planwritten request and at the direction of Seller, Buyer Indemnified Parties shall promptly and diligently pursue, at Seller’s expense, all remedies Buyer Indemnified Parties may have against any third parties for any such Losses, unless such remedies have no reasonable chance of success; orprovided, further, that, the amounts for which Seller shall be liable for such Losses under Section 6(b) shall be net of any amounts recovered by the Buyer Indemnified Parties from any third parties.
(iiivii) Notwithstanding any change in any accounting policy or practice of the Company made on and/or after the date provision of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors contrary, Seller shall not be liable required to indemnify any Buyer Indemnified Parties, and shall not have any Liability for any claim under Pre-Closing Environmental Liabilities, any breaches of the Warranties representations and warranties contained in Section 3(s) or Section 3(v) or any other matters pursuant to Environmental, Health and Safety Requirements to the extent that (A) any Buyer Indemnified Parties (1) incur any costs resulting or arising from any investigation of or Remedial Action with respect to environmental conditions (including drilling or sampling) following the factClosing other than any investigation or other Remedial Action reasonably required by Environmental, matterHealth and Safety Requirements; provided that, event without limiting any other provision of this Agreement (including the procedures in Section 6(g)(x)), this Section 6(e)(vii)(A)(1) shall not apply to (x) Phase II sampling conducted for the purpose of reasonably identifying a known or circumstance giving rise to such claim is remediable and is remedied by or suspected release of Hazardous Materials at the expense of Target Business’ Soderhamn, Sweden facility to the Warrantors extent such sampling is reasonably recommended by a Phase I environmental site assessment commenced within thirty 30 days of the date Closing Date and conducted to applicable ASTM standards by or on which written notice behalf of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties Buyer and to the extent that it arisessuch sampling is permitted by the legal owner of the Soderhamn, Sweden facility (provided that, Buyer shall provide Seller with a reasonable opportunity to review and comment on a draft of any such Phase I report prior to its finalization and on the scope and workplan of any such Phase II sampling prior to conducting such sampling), (y) Phase II sampling conducted for the purpose of reasonably identifying a known or suspected release of Hazardous Materials at the Real Properties in Prentice, Wisconsin, Owatonna, Minnesota or Zebulon, North Carolina to the extent reasonably recommended by a Phase I environmental site assessment conducted to applicable ASTM standards and to the extent conducted by or on behalf, and at the reasonable request, of a bone fide prospective purchaser of the relevant Real Property from the Buyer for the purpose of reasonably establishing a legal defense to liability for such a release of Hazardous Materials pursuant to applicable Environmental, Health and Safety Requirements (provided that, Buyer shall provide Seller with a reasonable opportunity to review and comment on a draft of any such Phase I report prior to its finalization and on the scope and workplan of any such Phase II sampling prior to conducting such sampling) and (z) a release of Hazardous Materials discovered solely as a result of commercially reasonable construction activities by Buyer at any Real Property in connection with an expansion of current Target Business operations (provided that, commercially reasonable construction activities shall in no case include any activities conducted for the purpose of identifying or assessing known, unknown or suspected environmental conditions, including any release of Hazardous Materials, excluding activities solely conducted for a commercially reasonable geotechnical, architectural and/or engineering purpose in connection with construction activities), (2) incur any costs in excess of the costs to comply with industrial cleanup standards or other applicable minimum standards, including the use of environmental land use restrictions, or is increased otherwise in excess of the minimum costs necessary to bring a condition into compliance with Environmental, Health and Safety Requirements or extended by:
to satisfy the reasonable requirements of a Governmental Authority or (i3) contribute to or exacerbate any action environmental condition or omission to take action by other Pre-Closing Environmental Liability after the Company Closing, (B) such Liability arises out of the cessation of or one change in operations at, or the closure or demolition of, a facility of its subsidiaries taken at the express and written request of an Investor Majority Target Business, (C) such Liability results or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested arises from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason removal of some liability which at the time that the claim is notified asbestos-containing materials or lead paint, except to the Warrantors shall be contingent onlyextent such asbestos-containing materials or lead paint were in a condition at or prior to the Closing not in compliance with Environmental, then Health, and Safety Requirements or (D) such Liability arises out of any post-Closing exposure to any Hazardous Material, except to the Warrantors shall not be extent provided under Section 6(b)(iii) with respect to any obligation Asbestos Liability, Silica Liability or Welding Rod Liability or to make payment in respect thereof until the extent such time as such contingent liability ceases to be contingent and becomes an actual liabilityLiability constitutes a Pre-Closing Environmental Liability.
Appears in 1 contract
Sources: Asset Purchase Agreement (Blount International Inc)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of a Purchaser Indemnified Party to assert claims against the Investors Holdback Fund under this Article 9 will be the sole and exclusive remedy of a Purchaser Indemnified Party for any indemnification claims in respect of this Agreement (other than with respect to any Claim shall only be enforceable if the Investors give written notice injunctive relief available to the Warrantors (giving so far as practicable the amount any Purchaser Indemnified Party or any rights a Purchaser Indemnified Party may have against a particular Securityholder with respect to such representations and reasonable details warranties of the ClaimSecurityholder as are set forth in the Transmittal Letter executed and delivered by such Securityholder) on and the transactions contemplated by this Agreement, and Purchaser Indemnified Parties will have no other rights or before the date being six (6) months from the date remedies for money damages in connection with any breach of completion and signing this Agreement or any other Loss arising out of the audit for negotiation, entry into or consummation of the financial year ended 31 March 2007transactions contemplated by this Agreement, and no Securityholder will have any liability in excess of its pro rata share of the then remaining amount in the Holdback Fund (in each case other than with respect to such representations set forth in such Securityholder’s Transmittal Letter). After the Closing Date, no party may seek the rescission of the transactions contemplated by this Agreement.
(b) The Warrantors shall not Holdback Fund will be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable sole and exclusive source for the whole of such liability and not merely Purchaser Indemnified Parties to recover Losses for the excess)which they may be entitled under this Article 9.
(c) Where there Notwithstanding anything contained herein to the contrary, the Purchaser Indemnified Parties will not have been breaches any rights to indemnification under this Agreement unless and until all aggregate Losses subject to such indemnification collectively exceed $750,000 (the “Threshold”), whereupon such indemnification will thereafter be available (subject to the other provisions of this Agreement) solely with respect to the Warranties then amount of such Losses that exceed the Investors shall Threshold; provided, however, that the Threshold will not be entitled apply to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) any inaccuracy in respect or breach of any representation or warranty of the Founder, a total of 1 x his compensation received from the Company contained in the year following Completion;
Section 3.4 or (ii) the matters described in respect Sections 9.1(c) through 9.1(f) hereof (and Losses pursuant to any inaccuracy in or breach of such representation or warranty of the Company, a total sum equal to Company contained in Section 3.4 or the aggregate Preference Issue Price paid for matters described in Sections 9.1(c) through 9.1(f) will not count toward the Investor SharesThreshold).
(d) The Investors shall not be entitled to recover from In no event will the Warrantors Purchaser’s Liability under this Agreement exceed the Warranties more than once in respect amount of the same damage sufferedMerger Consideration.
(e) The Warrantors shall be under no liability under the Warranties in respect of Notwithstanding any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date provision of this Agreement;
(ii) any change , nothing in the accounting reference date of the Company made on and/or after the date of this Agreement limits the Liability of a party to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where another party for fraud by such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceparty.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Merger Agreement
Limitations on Liability. The limitations All representations and warranties of Buyer set out forth in Paragraph 9(a) of this Agreement (collectively, the “Buyer Representations”) and the representations and warranties of Seller set forth in Paragraph 9(b) of this Agreement (collectively, the “Seller Representations”) shall be deemed to have been made as of the Effective Date and again as of the Closing Date. Notwithstanding the foregoing, Seller’s representations and warranties contained in Paragraph 9(b) of this Agreement shall survive the Closing for a period of nine (9) months after the Closing Date (the “Survival Period”) subject to the provisions of this Paragraph 9(c). Notwithstanding anything to the contrary contained in this clause 9.6 shall not apply Agreement or in any exhibits attached hereto or in any documents executed or to a claim under be executed in connection herewith (collectively, including this agreement Agreement, said exhibits and all such documents, the “Purchase Documents”), it is expressly understood and agreed by and between the parties hereto that the recourse of Buyer or its successors or assigns against Seller with respect to the Warrantors in respect of a alleged breach of Warranty (a “Claim”) which is (by or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Seller of any representation, warranty, covenant, undertaking, indemnity or agreement contained in any of the Investors Purchase Documents (collectively, “Seller’s Undertakings”) shall (i) be deemed waived unless Buyer has both delivered to Seller written notice that Buyer is seeking recourse under Seller’s Undertakings (the “Recourse Notice”) prior to the expiration of the Survival Period and filed suit within sixty (60) days thereafter, and (ii) be limited to an amount not to exceed One Million Dollars ($1,000,000) in respect the aggregate for all recourse of Buyer under the Purchase Documents. Seller shall have no liability to Buyer for a breach or default of any Claim of Seller’s Undertakings unless the valid claims for all such breaches and defaults collectively aggregate more than Fifteen Thousand Dollars ($15,000), in which event the full amount of such, valid claims shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) actionable. Any Seller’s Undertakings for which a Recourse Notice has not been given, or for which such specific suit has not been commenced on or before the date being six sixty (660) months from days following the date of completion and signing expiration of the audit for the financial year ended 31 March 2007.
(b) The Warrantors Survival Period shall not terminate and cease to be liable in respect of any Claim under force or effect, and neither party shall have any right, remedy, obligation or liability thereunder. Any such representation or warranty for which such specific written notice has not been given, or for which such specific suit has not been commenced, on or before the Warranties unless Survival Period after the total cumulative Closing Date shall terminate and cease to be of any force or effect and neither party shall have any right, remedy, obligation or liability thereunder. In the event, prior to Closing, Seller discovers that any of the Warrantors in respect of all such Claims exceeds £25,000 Seller’s Undertakings have materially and adversely changed, Seller shall give written notice thereof to Buyer (in which event the Warrantors a “Material and Adverse Change Notice”) and Seller’s Undertakings shall be liable deemed qualified and amended as set forth in such Material and Adverse Change Notice. Within three (3) days after receipt of a Material and Adverse Change Notice (the Closing Date being hereby extended for the whole such period, if necessary to give Buyer adequate time to respond), Buyer, as its sole and exclusive remedy at law or in equity on account of such liability Material and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled Adverse Change Notice from Seller, all other rights and remedies being hereby waived, may elect by written notice to recover from any Warrantor under the Warranties in respect of all such breaches more than:
Seller either to (i) terminate this Agreement, in respect which case the provisions of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
Paragraph 3(e) shall apply or (ii) in respect of accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Company, a total sum equal Transactions without any right or remedy on account thereof. Buyer’s failure to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which give timely written notice of such claim is given election to the Warrantors.
(j) The Warrantors Seller shall not be liable in respect of any Claim under the Warranties constitute Buyer’s irrevocable election to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express accept and written request of an Investor Majority or approve Seller’s Undertakings as so qualified and amended and proceed with the consent of an Investor Majority;
(ii) Transactions without any action right or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedremedy on account thereof.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Corporate Income Trust, Inc.)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect No claim may be asserted against any party for breach of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on representation, warranty or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter covenant contained herein or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the factAncillary Agreement, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which unless written notice of such claim is given by such other party in accordance with Section 13.2, describing in reasonable detail the facts and circumstances with respect to the Warrantorssubject matter of such claim on or prior to the date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 10.1, in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved.
(jb) The Warrantors shall not be liable in respect Notwithstanding any other provision of any Claim under the Warranties to the extent that it arises, or is increased or extended bythis Agreement:
(i) The Buyer Indemnified Parties shall have the right to indemnification under Section 10.2(a)(i) and the Seller Indemnified Parties shall have the right to indemnification under Section 10.2(c)(i), only if, and only to the extent that, the applicable Indemnified Parties (it being agreed that the Buyers shall be considered a single Indemnified Party for these purposes) shall have incurred indemnifiable Losses in excess of 1% of the Purchase Price (the “Basket Amount”), in which case United Gaming or Buyers, as applicable, shall be liable only for the Losses in excess of the Basket Amount; provided, however, that the aggregate indemnifiable Losses recoverable by any action Indemnified Party (it being agreed that the Buyers shall be considered a single Indemnified Party for these purposes) under or omission in connection with Section 10.2(a)(i) shall be limited to take action by 10% of the Company or one Purchase Price (the “Cap Amount”). The limitations in this clause (i) with respect to the Basket Amount shall not apply to any indemnification obligations arising from a breach of its subsidiaries taken at the express Special Warranties. The limitations in this clause (i) with respect to the Cap Amount shall not apply to any indemnification obligations arising from a breach of the Special Warranties (other than Benefit/Environmental Warranties, and written request of an Investor Majority or with the consent of an Investor Majorityrepresentations and warranties under Section 3.21, as to which such Cap Amount shall apply);
(ii) Except as expressly provided in this Agreement, neither Seller shall be obligated to indemnify any action Buyer Indemnified Party with respect to any Loss to the extent that a specific accrual or omission reserve for the amount of such Loss was reflected on the Financial Statements or the notes thereto;
(iii) Neither Seller shall be obligated to take action indemnify any Buyer Indemnified Party with respect to any Loss to the extent that Buyers received a benefit from the reflection of such matter in the calculation of the adjustment of the Purchase Price, if any, as finally determined pursuant to Section 2.8;
(iv) Except for punitive, incidental, consequential, special or indirect damages (“Special Damages”) arising from a third party claim where consent an Indemnified Party incurs actual liability for such Special Damages, no Indemnified Party shall be entitled to indemnification under this Agreement or agreement any Ancillary Agreement for any Special Damages relating to take the breach or omit to take such action was required under the terms alleged breach of this Agreement and requested from the Investors and/or a BVP Director but refusedor any Ancillary Agreement.
(kc) If For all purposes of this Article X, “Losses” shall be (i) decreased by (A) any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified insurance recoveries paid to the Warrantors shall be contingent onlyIndemnified Party or its Affiliates under policies maintained by the Partnership with respect to pre-Closing occurrences in connection with the facts giving rise to the right of indemnification, then (B) any Tax benefit actually realized by such Indemnified Party or its Affiliates arising in connection with the Warrantors shall accrual, incurrence or payment of any such Losses and (ii) increased by any Tax detriment that such Indemnified Party or its Affiliates otherwise would not be under have suffered but for the Tax or circumstances that gave rise to the Tax indemnity, including any obligation Taxes imposed on such Indemnified Party or its Affiliates with respect to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liabilityany indemnity payment.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Liabilities of each Provider and its Affiliates and Representatives, collectively, under this Agreement for any act or failure to act in connection herewith (including the Investors performance or breach of this Agreement) with respect to any Task-Specific Service, or from the sale, delivery, provision or use of any Task-Specific Service provided under or contemplated by this Agreement, whether in contract, tort (including negligence and strict liability) or otherwise, at law or equity, shall not exceed the amount of Charges received (and not previously paid back as a Liability hereunder) by the Provider (or its Affiliates) in respect of any Claim shall only be enforceable if the Investors give written notice Task-Specific Service for which the Liability arises hereunder in the twenty-four months immediately prior to the Warrantors date on which the Provider’s (or its applicable Affiliate’s or Representative’s) action or inaction (or, prior to the one-year anniversary of this Agreement if such action or inaction occurs during the first year of this Agreement) giving so far as practicable rise to the amount and reasonable details Liability arises or occurs; provided that, to the extent the Liability arises out of a Provider breaching this Agreement by not providing the Task-Specific Services required hereunder, then the Liability shall not exceed the greater of the Claim) on or before fees previously paid by such Recipient to such Provider for the date being six (6) twenty-four months from immediately prior to the initial date of completion and signing Provider’s failure to provide the required Service in respect of the audit Task-Specific Service from which such Liability flows or the estimated amount that such Provider would have been paid by such Recipient for such Task-Specific Services (if performed) for the financial year ended 31 March 2007same twenty-four month period.
(b) The Warrantors Notwithstanding anything to the contrary contained in the Separation and Distribution Agreement or this Agreement, the Provider shall not be liable to the Recipient or any of its Affiliates or Representatives, whether in respect contract, tort (including negligence and strict liability) or otherwise, at law or equity, for any special, indirect, incidental, punitive or consequential damages whatsoever (including lost profits or damages calculated on multiples of earnings approaches), which in any Claim under way arise out of, relate to or are a consequence of, the Warranties unless performance or nonperformance by the total cumulative liability Provider (including any Affiliates and Representatives of the Warrantors Provider and any unaffiliated third-party providers, in each case, providing the applicable Services) with respect to Task-Specific Services under this Agreement or the provision of, or failure to provide, any Task-Specific Service under this Agreement, including with respect to loss of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole profits, business interruptions or claims of such liability and not merely for the excess)customers.
(c) Where there have been breaches The Liabilities of each Provider and its Affiliates and Representatives, collectively, under this Agreement for any act or failure to act in connection herewith (including the Warranties then performance or breach of this Agreement) with respect to any Facility-Specific Service, or from the Investors sale, delivery, provision or use of any Facility-Specific Service provided under or contemplated by this Agreement, whether in contract, tort (including negligence and strict liability) or otherwise, at law or equity, shall not be entitled to recover from any Warrantor under exceed the Warranties in respect amount of all such breaches more than:
(i) Charges received by the Provider in respect of the Founder, a total of 1 x his compensation received from Facility-Specific Service for which the Company Liability arises hereunder in the year following Completion;
twenty-four months immediately prior to the date on which the Provider’s (iior its applicable Affiliate’s or Representative’s) action or inaction giving rise to the Liability (or, if later, Recipient’s first knowledge of any Liability related thereto) arises or occurs; provided that, to the extent the Liability arises out of a Provider breaching this Agreement by not providing the Facility-Specific Services required hereunder, then the Liability shall not exceed the greater of the fees previously paid by such Recipient to such Provider for the twenty-four months immediately prior to the initial date of Provider’s failure to provide the required Service in respect of the CompanyFacility-Specific Service from which such Liability flows or the estimated amount that such Provider would have been paid by such Recipient for such Facility-Specific Services (if performed) for the same twenty-four month period. Notwithstanding the foregoing limitations set forth in this Section 7.01(c), if any issue for cause of Liability hereunder (i) impacts the Recipient and its Affiliates in a total sum equal manner that is disproportionate to the aggregate Preference Issue Price paid effect on the Provider and its Affiliates or (ii) demonstrates that the Provider and its Affiliates are not acting with the same level of care as they would for their own business at such facility or other facilities on which the Provider relies in a manner similar to the Recipient’s reliance on such Facility-Specific Service), then the Provider’s Liability shall be limited to two-thirds (66.67%) of the indemnifiable Liabilities related thereto (with the Recipient responsible for the Investor Sharesother one-third (33.33%)).
(d) The Investors Notwithstanding anything to the contrary contained in the Separation and Distribution Agreement or this Agreement, in no event shall Provider (or its Affiliates or Representatives) have any Liability arising in connection with this Agreement (including under this Article VII) for any consequential, special, incidental, indirect or punitive damages, lost profits or similar items (including loss of revenue, income or profits, diminution of value or loss of business reputation or opportunity relating to a breach or alleged breach hereof); provided that (i) such limitation with respect to lost revenue, income or profits shall not limit any Person’s right to indemnification in accordance with this Agreement with respect to Liabilities that are the direct, proximate and reasonably foreseeable result of the breach of any representation, warranty, covenant or agreement in this Agreement by the other Party or its Affiliates and (ii) subject to the other limitations herein, each Party and its Affiliates shall be entitled to recover from indemnification, to the Warrantors under the Warranties more than once extent otherwise provided in this Agreement, with respect to all elements of the same damage sufferedany claim for damages asserted against such Party or any of its Affiliates by any unaffiliated Third Party.
(e) The Warrantors limitations in Section 7.01(a) and Section 7.01(c) shall be under no liability under the Warranties not apply in respect of any matter to Liability arising out of or in connection with the extent that gross negligence, willful misconduct, or fraud of or by the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed Party to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claimcharged.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. 8.1 The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors Seller shall not be liable in respect of any a General Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) or a claim in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Tax Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance facts and circumstances giving rise to the General Claim or claim in respect of the Tax Warranties are fully, accurately and fairly disclosed in the Disclosure Letter. The Disclosure Letter delivered to the Purchaser on the date of this Agreement may from time to time, but prior to the date of satisfaction of all of Conditions
2.1.1 to 2.1.11, be amended or supplemented by the Seller to reflect facts and circumstances which may arise subsequent to the date of this Agreement. Once notified to the Purchaser and subject to Condition 2.1.12, such liability was Disclosedamendments and/or supplements shall become part of the Disclosure Letter from the date of notification and shall qualify the Warranties as of the date of Completion.
(f) If any Claim against 8.2 Matters will be fully, accurately and fairly disclosed for the Warrantors is notified to them, purposes of clause 8.1 by being described in reasonable detail in the Warrantors (other than text of the Company) shall (so far as they are able) afford and procure that Disclosure Letter or by a general description in the Company affords Disclosure Letter together with a specific reference to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take documents, copies of them which have been made available to the Purchaser in the data room established for the purpose of ascertaining the positionPurchaser’s due diligence or are annexed to the Disclosure Letter, containing full details of such matter. No other information shall be considered disclosed so as to qualify the Seller’s liability under the Warranties or Tax Provisions.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) 8.3 The Warrantors Seller shall not be liable for any General Claim under unless the Warranties Purchaser gives to the extent that it arisesSeller written notice containing a summary of the nature of the General Claim, as far as is known to the Purchaser, on or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after before the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) being 18 months from Completion. The Warrantors Seller shall not be liable for any claim under Tax Claim unless the Warranties Purchaser gives written notice containing a summary of the nature of the Tax Claim, as far as it is known to the extent that Purchaser, to the fact, matter, event Seller on or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of before the date on which written notice of such claim is given to the Warrantorsbeing 7 years from Completion.
(j) 8.4 The Warrantors Seller shall not be liable have no liability in respect of any Claim other than a Specific Tax Claim unless the aggregate amount of the liability of the Seller in respect of all Claims other than Specific Tax Claims exceeds US$1,200,000. The Seller shall have no liability in respect of any Claim other than a Specific Tax Claim unless the Claim (or the aggregate of a series of connected Claims or Claims arising out of a single set of facts or circumstances) exceeds US$100,000 provided if the thresholds in this clause 8.4 are exceeded, the Seller shall be liable for the full amount of the Claims not just the excess.
8.5 Where the Purchaser recovers, under the Warranties an insurance policy or from a third party, any sum in respect of any matter or event which gives rise to the extent that it arises, or is increased or extended by:
a Claim such sum (i) less any action or omission to take action costs and expenses incurred by the Purchaser and/or the Company or one in recovering the sum, the amount of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise increase in premiums, including by reason of some loss of no claims bonus, which directly results from the making of the relevant claim by the Purchaser under an insurance policy and any Tax attributable to or suffered in respect of the sum recovered) will reduce the amount of the Claim by an equivalent amount (if recovered before settlement or determination of the Claim) and (if recovery is delayed until after the Claim has been satisfied by the Seller) shall be repaid to the Seller as soon as practicable after it is received. For the avoidance of doubt, if the amount so recovered exceeds the amount of the Claim satisfied by the Seller the Purchaser shall be entitled to retain the excess.
8.6 Whenever any Tax Claim shall be brought pursuant to Clause 8 or liability for taxation arise pursuant to Part III of Schedule 5 in connection with an action brought by a third party, the Seller and the Purchaser shall consult and cooperate with each other regarding the response to and the defence of any such action. In any event, the Seller shall be entitled to assume the defence or to represent the interests of the Purchaser and/or the Company in respect of such action, which shall include the right to select and direct legal counsel and other consultants to appear in proceedings on behalf of such Purchaser and/or the Company and to propose, accept or reject offers of settlement, all at its sole cost; provided, however, that no such settlement shall be made without the time prior written consent of the Purchaser, such consent not to be unreasonably withheld and that the claim is notified Seller will at all times have regard to the Warrantors business interests of the Company. Nothing herein shall be contingent only, then prevent the Warrantors shall not be under any obligation to make payment Purchaser from retaining its own counsel and participating in respect thereof until such time as such contingent liability ceases to be contingent its own defence at its own cost and becomes an actual liabilityexpense.
Appears in 1 contract
Sources: Share Purchase Agreement (Hutchison Telecommunications International LTD)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Notwithstanding anything to the contrary contained herein, Seller shall not have any obligation under Section 9.2(a)(i)(y) unless and until (i) the Losses incurred by the Buyer Indemnitees with respect to any matter or series of related matters for which indemnification is to be provided under Section 9.2(a)(i)(y) exceed $50,000, in which case Seller shall be liable for all Losses with respect to such matter or matters, including the first $50,000 (subject to all other applicable requirements and limitations herein, including Sections 9.3(b) and 9.3(c)) (such Losses, “Qualifying Losses”), and (ii) the aggregate of all Qualifying Losses exceed $750,000 (the “Deductible”), in which case Seller shall be liable under Section 9.2(a)(i)(y) for only those Qualifying Losses in excess of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice Deductible (subject to the Warrantors (giving so far as practicable the amount all other applicable requirements and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007limitations contained herein).
(b) The Warrantors Notwithstanding anything to the contrary contained herein, in no event shall not be liable in respect of any Claim under the Warranties unless the total cumulative aggregate liability of Seller under Section 9.2(a)(i)(y) exceed $16,500,000 (the Warrantors “Cap”). Notwithstanding anything to the contrary contained herein, in respect no event shall the aggregate liability of all such Claims exceeds £25,000 (in which event Seller under this Agreement exceed the Warrantors shall be liable for the whole of such liability and not merely for the excess)Purchase Price.
(c) Where there have been breaches of the Warranties then the Investors Each Indemnified Party shall not use reasonable efforts to mitigate all Losses for which such Indemnified Party is or may be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Sharesindemnification hereunder.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once If any Buyer Indemnitee actually receives insurance proceeds or indemnity, contribution or similar payments in respect of Losses under this Article IX prior to being indemnified with respect to such Losses under this Article IX, the same damage sufferedpayment under this Article IX with respect to such Losses shall be reduced by the amount of such insurance proceeds or indemnity, contribution or similar payments, less reasonable out-of-pocket attorney’s fees and other expenses or increased premiums incurred in connection with such recovery. If Buyer Indemnitee receives such insurance proceeds or indemnity, contribution or similar payments described in the preceding sentence after being indemnified with respect to some or all of such Losses, Buyer Indemnitee shall pay to Seller the lesser of (i) the amount of such insurance proceeds or indemnity, contribution or similar payment, less reasonable out-of-pocket attorney’s fees and other expenses incurred in connection with such recovery and (ii) the aggregate amount paid by Seller to any Buyer Indemnitee with respect to such Losses. The amount of any and all Losses under Section 9.2(a) and Section 9.2(b) shall be determined net of any Tax benefits (determined on a “with” and “without” basis) actually received in cash (whether by actual receipt of cash Tax refund or an actual reduction of cash Taxes due and owing) by any Indemnified Party seeking indemnification hereunder arising from the deductibility against Taxes of any such Losses in the year of the Loss or the immediately following two (2) years (such determination of the amount and timing of any such Tax benefit to be determined at the reasonable discretion of the Indemnified Person in good faith). If an Indemnified Party receives any such Tax benefit described in the preceding sentence after receiving an indemnification payment with respect to a Loss, but within the two (2) year period described above in this Section 9.3(d), the Indemnified Party shall pay an amount equal to such Tax benefit to the Indemnifying Party within ten (10) days of such Tax benefit being realized.
(e) The Warrantors In no event shall any party be under no liability under the Warranties entitled to recover or make a claim for any amounts in respect of of, and in no event shall “Losses” be deemed to include (i) punitive damages, except to the extent awarded in connection with any matter Third-Party Claim and (ii) any Loss to the extent that the matter or circumstance giving rise to amount of such Loss is reflected as a current liability was Disclosedin the determination of the Net Working Capital on the Final Closing Statement.
(f) If any Claim against Notwithstanding anything to the Warrantors is notified to themcontrary in this Agreement, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors Buyer Indemnitees shall not be liable for have any Claim right to indemnification under the Warranties this Agreement with respect to, or based on, Taxes to the extent that it arises, or is increased or extended by:
such Taxes (i) any change to legislation, any increase in rates of taxation or any change in except as the published practice result of a revenue authoritybreach of a representation or warranty set forth in Section 3.22(e), in each case made on and/or Section 3.22(f), Section 3.22(g) or Section 3.22(i), are attributable to Tax periods (or portions thereof) beginning after the date of this Agreement and not publicly known at the date of this Agreement;
Closing Date, (ii) are due to the unavailability in any change in the accounting reference date of the Company made on and/or Tax period (or portion thereof) beginning after the date Closing Date of this Agreement any net operating losses, credits or other Tax attribute from a Tax period (or portion thereof) ending on or prior to the extent not envisaged or taken into account in the preparation of the Business Plan; or
Closing Date, (iii) result from transactions or actions taken by Buyer or any change in any accounting policy or practice of its Affiliates (including, for the Company made avoidance of doubt, the Acquired Companies) on and/or the Closing Date after the date of Closing that are not expressly required by this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arisesAgreement, or is increased or extended by:
(iiv) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested do not arise from the Investors and/or a BVP Director but refusedThird Party Claim.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 (a) Notwithstanding the foregoing, the Sellers shall not apply be obligated to indemnify and hold harmless any Buyer Indemnitee from Damages, (i) in the case of a claim for Damages under this agreement against the Warrantors in respect of Section 8.2(a) arising from a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part representations and warranties relating solely and exclusively to any of the Warrantors:Subsidiaries, unless and until the aggregate amount of such Damages exceeds $4,500,000, (ii) in the case of any other claim for Damages under Section
(a) for breach of any representation or warranty, unless and until the aggregate amount of such Damages exceeds $1,000,000 or (iii) in the case of any claim for Damages under Section 8.2(e), unless and until the aggregate amount of such Damages exceeds $10,000. The rights Buyer shall not be obligated to indemnify and hold harmless any Seller Indemnitee from Damages with respect to one or more claims under Section 8.3(a) for any breach of any representation or warranty, unless and until the aggregate amount of such Damages exceeds $4,500,000. The aggregate indemnification liability of the Investors Sellers or the Buyer for Damages (other than any Damages derived from or attributable to any Employee Benefit Plan other than an Assumed Plan, any Tax Item, any Excluded Liabilities and any Designated Employee Liability) under this Agreement shall not exceed twenty-five percent (25%) of the Purchase Price. The aggregate indemnification liability of the Sellers for Damages attributable to any Designated Employee Liability under this Agreement shall not exceed $75,000. Notwithstanding the foregoing, nothing contained in the Management Certificate shall act to qualify, limit, or reduce Seller's indemnification obligations pursuant to Section 8.2, except with respect of any Claim shall only be enforceable if the Investors give written notice to those representations qualified by Sellers' Knowledge. Notwithstanding anything to the Warrantors (giving so far as practicable contrary contained herein, Sellers shall not be obligated to indemnify and hold harmless any Buyer Indemnitee against indirect, special, incidental, consequential or punitive damages, except to the amount and reasonable details extent any of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007foregoing constitute Damages payable to third parties by Buyer in connection with any third party claim.
(b) The Warrantors shall not be liable Any indemnification payment made pursuant to this Agreement in respect of any Claim under claim (i) shall be net of any insurance proceeds realized by and paid to the Warranties unless the total cumulative liability of the Warrantors indemnified party in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability claim; and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum shall be reduced by an amount equal to any tax benefits attributable to such claim, and increased by an amount equal to any taxes attributable to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect receipt of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter such payment, but only to the extent that such tax benefits are actually realized, or such taxes are actually paid, as the matter case may be, by the Sellers or circumstance giving rise by the Buyer or by any consolidated, combined, or unitary group of which the Buyer or the Sellers are a member. The indemnified party shall use its reasonable efforts to such liability was Disclosed.
(f) If make insurance claims relating to any Claim against the Warrantors claim for which it is notified seeking indemnification pursuant to them, the Warrantors (other than the Company) this Section. Any indemnity payment under this Agreement shall (so far be treated as they are able) afford and procure that the Company affords an adjustment to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the positionpurchase price.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice Notwithstanding anything contained herein to the Warrantors contrary, no Indemnifying Party shall have any indemnification obligations under this Article XII with respect to General Indemnified Losses until such time as the aggregate General Indemnified Losses for which the Acquiror Indemnified Parties are otherwise entitled to indemnification hereunder equals or exceeds $400,000 (giving so far as practicable the amount and reasonable details of "Basket"), at which point, the Claim) on or before the date being six (6) months from the date of completion and signing of the audit Indemnifying Party shall be liable for the financial year ended 31 March 2007full amount of all such General Indemnified Losses without regard to the Basket. The Special Indemnified Losses are not subject to or limited in any way by the Basket, and the Indemnifying Parties shall be liable for the full amount of all such Special Indemnified Losses.
(b) The Warrantors aggregate indemnification obligations under this Article XII with respect to General Indemnified Losses shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability capped at 10% of the Warrantors in respect aggregate Merger Consideration. The rights of all such Claims exceeds £25,000 (in which event the Warrantors Acquiror Indemnified Parties to make claims against the Escrowed Shares, Escrowed Cash and any proceeds thereof shall be liable for the whole sole and exclusive remedy of such Acquiror Indemnified Parties after the Closing with respect to any representation and warranty, covenant or agreement made by the Company under this Agreement and with respect to the Parker/Hunter Dispute and no former stockholder, optionholde▇, ▇▇▇r▇▇▇▇▇▇der, director, officer, employee or agent of the Company shall have any personal liability and not merely for hereunder to the excess)Acquiror Indemnified Parties after the Closing in connection with the Merger.
(c) Where there If any matters giving rise to a claim of General Indemnified Losses pursuant to this Article XII by the Acquiror Indemnified Parties is reasonably likely to be covered by any insurance policy of Acquiror, then no amount shall be recovered pursuant to this Article XII unless and until such Acquiror Indemnified Parties shall have been breaches made all commercially reasonable efforts for a period of six months to obtain reimbursement for such General Indemnified Loss under such insurance policy, and then only to the Warranties then extent aggregate insurance proceeds actually received by such Acquiror Indemnified Parties in respect of all Damages arising from such claim (less any premium adjustments and similar charges made as a result of making such claim) are less than such Damages; provided, however, that if no insurance proceeds are received after making such commercially reasonable efforts upon the Investors termination of such six month period, such Acquiror Indemnified Parties shall not be entitled to recover from any Warrantor under the Warranties in respect full amount of all such breaches more than:
(i) in respect General Indemnified Losses. Matters giving rise to a claim of Special Indemnified Losses pursuant to this Article XII by the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors Acquiror Indemnified Parties shall not be entitled subject to recover from the Warrantors under the Warranties more than once in respect of the same damage sufferedthis Section 12.4(c)."
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement7. Exhibit 3.5;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice Notwithstanding anything contained herein to the Warrantors contrary, no Indemnifying Party shall have any indemnification obligations under this Article XII until such time as the aggregate Indemnified Losses for which the Acquiror Indemnified Parties are otherwise entitled to indemnification hereunder equals or exceeds $400,000 (giving so far as practicable the amount and reasonable details of “Basket”), at which point, the Claim) on or before the date being six (6) months from the date of completion and signing of the audit Indemnifying Party shall be liable for the financial year ended 31 March 2007full amount of all such Indemnified Losses without regard to the Basket.
(b) The Warrantors aggregate indemnification obligations under this Article XII shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability capped at 10% of the Warrantors in respect aggregate Merger Consideration. The rights of all such Claims exceeds £25,000 (in which event the Warrantors Acquiror Indemnified Parties to make claims against the escrowed shares and any proceeds thereof shall be liable for the whole sole and exclusive remedy of such Acquiror Indemnified Parties after the Closing with respect to any representation, warrant, covenant or agreement made by the Company under this Agreement and no former stockholder, optionholder, warrantholder, director, officer, employee or agent of the Company shall have any personal liability and not merely for hereunder to the excess)Acquiror Indemnified Parties after the Closing in connection with the Merger.
(c) Where there If any matters giving rise to a claim of Indemnified Losses pursuant to this Article XII by the Acquiror Indemnified Parties is reasonably likely to be covered by any insurance policy of Acquiror, then no amount shall be recovered pursuant to this Article XII unless and until such Acquiror Indemnified Parties shall have been breaches made all commercially reasonable efforts for a period of six months to obtain reimbursement for such Indemnified Loss under such insurance policy, and then only to the Warranties then extent aggregate insurance proceeds actually received by such Acquirior Indemnified Parties in respect of all Damages arising from such claim (less any premium adjustments and similar charges made as a result of making such claim) are less than such Damages; provided, however, that if no insurance proceeds are received after making such commercially reasonable efforts upon the Investors termination of such six month period, such Acquiror Indemnified Parties shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice full amount of such claim is given to the WarrantorsIndemnified Losses.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. (a) The limitations set out in this clause 9.6 indemnification obligations under Section 8.2 shall not apply to any Claims until the aggregate of all Claims suffered by the Traffix Indemnified Parties shall exceed the Indemnification Threshold, except as provided below. In the event that Claims suffered by the Traffix Indemnified Parties do exceed the Indemnification Threshold, the Traffix Indemnified Parties shall be entitled to recover from Seller and Seller’s Shareholder, on a claim joint and several basis, the full amount of such Claims in excess of the Indemnification Threshold subject to the limits of this Agreement. In no event shall the indemnification obligations under Section 8.2 exceed in the aggregate the Indemnification Cap, except as provided below. The limitations in this Section 8.5(a) (both the Indemnification Threshold and the Indemnification Cap) shall not apply to (1) any breach of the representations or warranties of Seller and Seller’s Shareholder in Sections 5.1, 5.5, 5.8, and 5.21, (2) any breach of any covenant or agreement or (3) any willful breach under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (Agreement or the delay in discovery of which is) the consequence of fraud, any fraudulent act or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007omission.
(b) The Warrantors indemnification obligations under Section 8.3(b) shall not apply to any Claims until the aggregate of all Claims suffered by the Seller Indemnified Parties shall exceed the Indemnification Threshold, except as provided below. In the event that Claims suffered by the Seller Indemnified Parties do exceed the Indemnification Threshold, the Seller Indemnified Parties shall be liable entitled to recover from Purchaser and Traffix, on a joint and several basis, the full amount of such Claims in respect of any Claim under the Warranties unless the total cumulative liability excess of the Warrantors Indemnification Threshold subject to the limits of this Agreement. In no event shall the indemnification obligations under Section 8.3(b) exceed in respect of all such Claims exceeds £25,000 the aggregate the Indemnification Cap, except as provided below. The limitations in this Section 8.5(b) (in which event both Indemnification Threshold and the Warrantors Indemnification Cap) shall be liable for the whole of such liability and not merely for the excess)apply to any willful breach under this Agreement or any fraudulent act or omission.
(c) Where there have been breaches Any indemnification payment made by Seller hereunder shall be payable in a combination of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect cash and shares of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company Common Stock in the year following Completion;
(ii) same proportion as the combination of cash and shares of Common Stock constituting the Fixed Purchase Price; provided that if Seller sells any shares of Common Stock after the Closing, the portion of any such indemnification payment payable in respect of the Company, a total sum cash shall be increased by an amount equal to the aggregate Preference Issue Price paid for product of (x) the Investor Shares.
number of shares of Common Stock sold by Seller after the Closing, multiplied by (dy) the Closing Share Price. The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent parties hereto agree that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies value of them for the purpose each share of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which Common Stock at the time that the claim is notified to the Warrantors of any such indemnification payment shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liabilityClosing Share Price.
Appears in 1 contract
Limitations on Liability. The limitations set out (a) Neither the Sellers, on the one hand, nor the Purchasers or the Company, on the other hand, shall have any obligation to indemnify any Purchaser Indemnified Party or any Seller Indemnified Party, respectively, pursuant to Section 7.2 or Section 7.3, respectively, unless and until the aggregate of all Losses suffered or incurred by all Purchaser Indemnified Parties or Seller Indemnified Parties, as applicable, which would otherwise be subject to indemnification hereunder exceeds US$100,000 (the “Threshold”), at which time such Purchaser Indemnified Parties or Seller Indemnified Parties shall be entitled to be indemnified against all Losses in this clause 9.6 excess of such amount. This limitation shall not apply to a claim under this agreement against the Warrantors obligation of the Sellers to indemnify the Purchasers and the Company for, and hold them harmless from, any Losses arising out of or in connection with the Remaining Litigation. Notwithstanding the foregoing, the Sellers shall have no obligation to the Purchasers or the Company with respect of to Losses relating to the Tax Credits or their impairment arising from a breach of Warranty (a “Claim”) which is (the Sellers’ or the delay in discovery of which is) the consequence of fraudCompany’s representations, warranties or covenants, or dishonesty otherwise, unless and until the value of such Tax Credits is impaired to a value of less than the Acquisition Consideration (and then only to the extent of the amount below the Acquisition Consideration), except when such impairment or diminution results from the knowing fraud of the Sellers or the Company prior to the Closing, in which case, the Sellers shall fully indemnify the Purchasers and the Company for any impairment or diminution attributable to such knowing fraud without any deduction, subject to Section 7.4(b). In addition, the Sellers shall have no indemnification obligation to the Purchasers or the Company for (i) any impairment or diminution in the value of the Tax Credits caused by any change in Tax rates or Tax Law after the Closing or any action taken by the Purchasers or the Company after the Closing, (ii) any labor claims or Liabilities of the Company arising after the Closing Date, including, without limitation, any claims for payment of amounts due for profit sharing to employees or former employees except for claims or Liabilities arising from or related to labor or employment obligations of the Company existing prior to the Closing Date or (iii) any breach of the representation contained in Section 2A.6 unless a third party attempts to unwind the transactions consummated pursuant to this Agreement based on such transactions resulting in a fraudulent conveyance or preference transaction.
(b) Neither the Sellers, on the part one hand, nor the Purchasers or the Company, on the other hand, shall have any obligation to indemnify the Purchaser Indemnified Parties or Seller Indemnified Parties, as applicable, pursuant to Section 7.2 or Section 7.3, respectively, for aggregate Losses exceeding the Acquisition Consideration; provided, however, that this limitation shall not apply to the obligation of the Warrantors:Sellers to indemnify the Purchasers and the Company for, and hold them harmless from, any Losses arising out of or in connection with the Remaining Litigation.
(ac) The rights of the Investors parties for indemnification relating to this Agreement or the transactions contemplated hereby shall be strictly limited to those contained in this Article 7, and such indemnification rights shall be the exclusive remedies of the parties subsequent to the Closing Date with respect to any matter arising under or in connection with this Agreement; provided, however, that such limitation shall not apply to any damages arising from or related to any acts of fraud committed by either party. To the maximum extent permitted by applicable Law and except as set forth in this Article 7, the parties hereto hereby waive all other rights and remedies with respect to any matter arising under or in connection with this Agreement, whether under any Law, at common law or otherwise. Except as provided in this Article 7, no claim, action or remedy shall be brought or maintained by any party hereto, or its Affiliates, successors or permitted assigns against any other party hereto, and no recourse shall be sought or granted against any of them, by virtue of or based upon any alleged misstatement or omission respecting an inaccuracy in or breach of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on representations, warranties or before the date being six (6) months from the date covenants of completion and signing any of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable parties hereto set forth or contained in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Sharesthis Agreement.
(d) The Investors In addition, Losses shall not be under any circumstances include any consequential, punitive or exemplary damages or lost profits; provided, however, that this limitation shall not apply to consequential, punitive or exemplary damages or lost profits awarded to a third party against the Company under any of the Remaining Litigation. Any party entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors indemnification hereunder shall be under no liability under the Warranties in respect take all reasonable steps to mitigate Losses upon and after becoming aware of any matter event that could reasonably be expected to the extent that the matter or circumstance giving give rise to such liability was DisclosedLosses.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Equity Purchase Agreement (America Online Latin America Inc)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(ai) The rights of the Investors Buyer Indemnified Parties to be indemnified pursuant to this Article 6 shall be the sole and exclusive remedy with respect to any breach by Holdback Participants of this Agreement and the other matters set forth in Section 6.02. The Holdback Funds shall be the sole recourse of the Buyer Indemnified Parties to be indemnified pursuant to this Article 6 with respect to any breach of any Claim representation or warranty of Holdback Participants contained in this Agreement and the maximum aggregate liability of the Holdback Participants for breaches of representations or warranties of Holdback Participants contained in this Agreement shall only be enforceable if not exceed $3,750,000 (the Investors give written notice “Indemnity Cap”); provided however, that (A) the maximum aggregate liability of the Holdback Participants for any indemnification claim with respect to breach of the representations and warranties made in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) or 3.24 (Tax Matters) may exceed the Indemnity Cap but shall not exceed an amount equal to the Warrantors Purchase Price, (giving so far as practicable B) the amount and reasonable details maximum aggregate liability of the Claim) on or before the date being six (6) months from the date of completion and signing Holdback Participants for any indemnification claims with respect to breach of the audit representations and warranties made in Section 3.22(l) (Employee Benefit Plans) may not exceed an amount equal to the Indemnity Cap; provided, that the maximum aggregate liability of the Sellers and Management Employees for any indemnification claims with respect to breach of the financial year ended 31 March 2007representations and warranties made in Section 3.22(l) (Employee Benefit Plans) may exceed the Indemnity Cap but shall not exceed an amount equal to the Indemnity Cap plus $1,000,000 and any such excess shall be payable by the Sellers and Management Employees pro rata, in proportion to the Additional Indemnity Percentage of such Seller or Management Employee as set forth on Schedule I attached hereto, and (C) the maximum aggregate liability of the Holdback Participants for any breach of any covenant of Holdback Participants contained in this Agreement and indemnification pursuant to Sections 6.02(a)(i)(B), 6.02(a)(ii) and 6.02(a)(iii) may exceed the Indemnity Cap but shall not exceed an amount equal to the Purchase Price. Subject to the limitations set forth in this Section 6, the total amount required to be paid by any Holdback Participant pursuant to Section 6.02(a) shall be limited in the aggregate to the value of the Purchase Price received by such Holdback Participant (including portions of future holdback payments to which such Holdback Participant may be entitled). The Buyer Indemnified Parties shall not seek direct indemnification from any Holdback Participant with respect to any indemnification pursuant to this Agreement prior to exhaustion of the Holdback Funds.
(ii) From and after the Closing, the right of the Seller Indemnified Parties to be indemnified pursuant to this Article 6 shall be the sole and exclusive remedy with respect to any breach of any representation, warranty or covenant of Buyer contained in, or any other breach by Buyer of, this Agreement. The aggregate indemnity obligations of any Buyer Indemnifying Party pursuant to this Article 6 shall be uncapped.
(iii) Nothing in this Section 6.03(a) or elsewhere in this Agreement shall affect the parties’ right to specific performance or other similar non-monetary equitable remedy. The parties hereby waive any provision of any Applicable Law to the extent that it would limit or restrict the agreement contained in this Section 6.03(a).
(b) The Warrantors shall not be liable in respect Without limiting the effect of any Claim under the Warranties unless the total cumulative liability of the Warrantors other limitation contained in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
this Article 6: (i) the indemnification provided for in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;Sections 6.02
(iia) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(dand 6.02(b) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter apply except to the extent that the matter or circumstance giving rise aggregate Damages against which the applicable Indemnified Party would otherwise be entitled to such liability was Disclosed.
be indemnified under this Article 6 exceeds $270,000 (f) If any Claim against the Warrantors is notified to them“Threshold”), in which event the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords Indemnified Party shall, subject to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall other limitations contained herein, be deemed entitled to be withdrawn indemnified from the first dollar thereof; provided however, that (if it has not been previously satisfied, settled or withdrawnA) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors Threshold shall not be liable for apply to any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect breach of any Claim under the Warranties to the extent that it arisesrepresentation or warranty made by Sellers in Sections 3.01 (Corporate Existence and Power), or is increased or extended by:
3.02 (iCorporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.3.22
Appears in 1 contract
Sources: Stock Purchase Agreement
Limitations on Liability. The limitations set out (a) Seller’s liability for any Losses arising from any breach of any representation or warranty in this clause 9.6 Agreement shall not apply be subject to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantorsfollowing limitations:
(ai) The rights of Seller’s representations and warranties in this Agreement shall survive the Investors in respect Closing, but shall terminate on April 30, 2006 except to the extent that written notice of any Claim alleged breach thereof has been provided to Seller prior to such date pursuant to Section 8.3; and
(ii) Seller shall have no liability for such Losses until the aggregate amount of such Losses for which Seller is obligated to indemnify pursuant to Section 8.1(a) shall exceed $1,000,000 (the “Threshold Amount”), in which case Seller shall only be enforceable if the Investors give written notice liable to the Warrantors (giving so far as practicable extent that the amount and reasonable details aggregate of all such indemnifiable Losses exceeds the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Threshold Amount.
(b) The Warrantors Seller’s aggregate liability for all indemnified Losses under Sections 8.1(a) and 8.1(b) of this Agreement shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability exceed 75% of the Warrantors in respect sum of the Purchase Price and the Non-Compete Consideration, except that Seller’s aggregate liability for all such Claims exceeds £25,000 (in which event the Warrantors indemnified Losses pursuant to Section 8.1 shall be liable for the whole not exceed 100% of such liability sum. Notwithstanding anything to the contrary, the limitations of this clause (b) shall not apply to (i) any Taxes of Seller and not merely for its Subsidiaries other than Taxes of, or attributable to, the excessCompanies and (ii) Section 8.1(d).
(c) Where there have been breaches The amount of the Warranties then Indemnifying Party’s liability under this Agreement for any Loss shall be determined after taking into account any applicable insurance proceeds received by the Investors shall not be entitled to recover from any Warrantor under the Warranties Indemnified Party in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received Loss. Buyer and Seller shall each use commercially reasonable efforts to collect any amount available under insurance coverage or from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid any other Person responsible for the Investor Sharesany Losses for which an indemnity claim is being made.
(d) The Investors No Indemnified Party shall be entitled under this Agreement to multiple recovery for the same Losses, and the parties agree that the indemnification provisions set forth in this Agreement shall not apply to any Losses to the extent such Losses are accounted for in the calculations of the purchase price adjustment set forth in Section 2.2. Seller shall cooperate with and assist Buyer and the Companies to recover any reasonable claims resulting from pre-Closing events or occurrences with respect to the operations of the Companies under any insurance policy of Seller applicable therefor; provided that Seller shall have no obligation to incur any cost or expense, pay any premium or make any other payment to an insurer in connection therewith unless reimbursed by Buyer therefor. If an Indemnified Party receives any amount under applicable insurance policy, or from any other Person alleged to be responsible for any Losses, subsequent to receipt of an indemnification payment, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such party in connection with providing such indemnification payment up to the lesser of (i) the amount received by the Indemnified Party from the other Person in respect of such Losses, net of any expenses incurred by such party in collecting such amount, and (ii) the excess, if any, of the total amount received in respect of such Losses from the other Person and from the Indemnifying Party over the sum of the total amount of such Losses suffered by the Indemnified Party and the expenses incurred by the Indemnified Party in collecting such amounts. Any Losses excluded from the indemnification provisions set forth in this Article VIII due to insurance or other third party recoveries shall not be entitled to recover from considered for purposes of calculating the Warrantors under the Warranties more than once deductible threshold set forth in respect of the same damage sufferedSection 8.4(a).
(e) The Warrantors All indemnification payments for Losses made pursuant to this Article VIII shall be made on an after-tax basis. Accordingly, in determining the amount of any indemnification payment for a Loss suffered or incurred by an indemnitee hereunder, the amount of such Loss shall be (i) increased to take into account any additional Tax cost actually incurred by the indemnitee arising from the receipt of indemnification payments hereunder (“Tax Costs”) and (ii) decreased to take into account any deduction, credit or other tax benefit actually realized by the indemnitee with respect to such Loss (“Tax Benefits”). In computing the amount of any such Tax Cost or Tax Benefit, the indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnification payment hereunder or the incurrence or payment of any indemnified Loss; provided, that, if a Tax Cost or Tax Benefit is not realized in the taxable period during which an indemnifying party makes an indemnification payment or the indemnitee incurs or pays any Loss, the parties hereto shall thereafter make payments to one another at the end of each subsequent taxable period to reflect the net Tax Costs and Tax Benefits realized by the parties hereto in each such subsequent taxable period. Any payment made from Seller to Buyer shall, unless otherwise required by Law, be treated as a reduction in Purchase Price that will not result in any actual Tax Cost to Buyer for purposes of subsection (i) of this Section 8.4(e).
(f) The parties agree that under no liability under circumstances will a party be entitled to any special, consequential, indirect or punitive damages pursuant to the Warranties indemnification provisions set forth in respect this Agreement, except to the extent such damages are awarded or otherwise required to be paid to a third party. The foregoing shall not, however, limit the ability of the Parent and the Buyer to recover Damages for the diminution in value of the Companies associated with any matter breach of the Seller’s representations and warranties relating to the Companies hereunder to the extent that the matter or circumstance giving rise laws of New York would permit a party to recover such liability was Disclosed.
(f) If any Claim against damages as a consequence of the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the positionbreach.
(g) Any Claim Without prejudice to Section 9.7, in the absence of fraud, the indemnification provided in this Article VIII shall be deemed the exclusive remedy for money damages available to be withdrawn (if it has not been previously satisfied, settled the parties for any breach of this Agreement or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months relation to any claim arising out of the giving of written notice of the ClaimTransactions.
(h) The Warrantors parties agree that any indemnification payment made pursuant to this Agreement shall not be liable for any Claim under the Warranties treated as an adjustment to the extent that it arisesPurchase Price for Tax purposes, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is unless otherwise required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceby applicable Law.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out Notwithstanding anything to the contrary in this clause 9.6 Agreement, in no event shall the aggregate liability of Seller under Section 11.5(a)(i) exceed the amount then remaining in the Indemnity Escrow Account (the “General Cap”); provided, however, that the General Cap shall not apply with respect to a claim any breach of the Equity Ownership Representations or any breach of the Post-Closing Covenants; provided, further that the Buyer and the Acquired Companies shall first seek recourse for payment of all claims under Section 11.5(a) from the Indemnity Escrow Account in accordance with the Post-Closing Escrow Agreement until no such funds remain in the Indemnity Escrow Account. Notwithstanding anything to the contrary in this Agreement, in no event shall the aggregate liability of Seller under this agreement against Agreement exceed the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part portion of the Warrantors:
Purchase Price actually received by Seller. The amount of any such Losses for which indemnification is provided to the indemnified party shall be net of any amounts recovered by the indemnified party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses (a) The rights net of expenses incurred in obtaining any such recovery and, with respect to recovery under insurance policies, net of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice deductible for such policies to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole extent arising out of such liability and not merely for Losses). If such insurance proceeds, indemnity payments or reimbursements are realized or obtained by the excess).
(c) Where there have indemnified party after any amount has been breaches paid by or on behalf of the Warranties then the Investors shall not be entitled Seller pursuant to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(ithis Section 11.5(a) in respect of Losses to the Founderindemnified party, a total of 1 x his compensation Buyer shall, or shall cause the indemnified party to, reimburse the amount realized or collected by the indemnified party up to the amount received from Seller for such Losses. If the Company indemnified party does not elect to pursue its claims under any applicable insurance policy, indemnity or reimbursement arrangement with respect to the applicable Losses, it shall, at the request of Seller, cause such claims to be assigned over to Seller or its designee and reasonably cooperate with Seller in the year following Completion;
(ii) in respect pursuit of such claims. The amount of Losses for which indemnification is provided under this Section 11.5 shall be calculated net of any Tax benefits actually realized by Buyer and/or any of the CompanyAcquired Companies in the taxable period that includes the indemnity payment (either through a reduction in cash Tax payments required to be made or an increase in Tax refunds actually received), in each case, as a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect result of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance Losses giving rise to such liability was Disclosedthe indemnification.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Securities Purchase Agreement (Colony Starwood Homes)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice Notwithstanding anything contained herein to the Warrantors contrary, no Indemnifying Party shall have any indemnification obligations under this Article XII with respect to General Indemnified Losses until such time as the aggregate General Indemnified Losses for which the Acquiror Indemnified Parties are otherwise entitled to indemnification hereunder equals or exceeds $400,000 (giving so far as practicable the amount and reasonable details of "Basket"), at which point, the Claim) on or before the date being six (6) months from the date of completion and signing of the audit Indemnifying Party shall be liable for the financial year ended 31 March 2007full amount of all such General Indemnified Losses without regard to the Basket. The Special Indemnified Losses are not subject to or limited in any way by the Basket, and the Indemnifying Parties shall be liable for the full amount of all such Special Indemnified Losses.
(b) The Warrantors aggregate indemnification obligations under this Article XII with respect to General Indemnified Losses shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability capped at 10% of the Warrantors in respect aggregate Merger Consideration. The rights of all such Claims exceeds £25,000 (in which event the Warrantors Acquiror Indemnified Parties to make claims against the Escrowed Shares, Escrowed Cash and any proceeds thereof shall be liable for the whole sole and exclusive remedy of such Acquiror Indemnified Parties after the Closing with respect to any representation and warranty, covenant or agreement made by the Company under this Agreement and with respect to the ▇▇▇▇▇▇/▇▇▇▇▇▇ Dispute and no former stockholder, optionholder, warrantholder, director, officer, employee or agent of the Company shall have any personal liability and not merely for hereunder to the excess)Acquiror Indemnified Parties after the Closing in connection with the Merger.
(c) Where there If any matters giving rise to a claim of General Indemnified Losses pursuant to this Article XII by the Acquiror Indemnified Parties is reasonably likely to be covered by any insurance policy of Acquiror, then no amount shall be recovered pursuant to this Article XII unless and until such Acquiror Indemnified Parties shall have been breaches made all commercially reasonable efforts for a period of six months to obtain reimbursement for such General Indemnified Loss under such insurance policy, and then only to the Warranties then extent aggregate insurance proceeds actually received by such Acquiror Indemnified Parties in respect of all Damages arising from such claim (less any premium adjustments and similar charges made as a result of making such claim) are less than such Damages; provided, however, that if no insurance proceeds are received after making such commercially reasonable efforts upon the Investors termination of such six month period, such Acquiror Indemnified Parties shall not be entitled to recover from any Warrantor under the Warranties in respect full amount of all such breaches more than:
(i) in respect General Indemnified Losses. Matters giving rise to a claim of Special Indemnified Losses pursuant to this Article XII by the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors Acquiror Indemnified Parties shall not be entitled subject to recover from the Warrantors under the Warranties more than once in respect of the same damage sufferedthis Section 12.4(c)."
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement7. Exhibit 3.5;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Agreement and Plan of Merger (North American Scientific Inc)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(ai) The rights of the Investors Buyer Indemnified Parties to be indemnified pursuant to this Article 6 shall be the sole and exclusive remedy with respect to any breach by Holdback Participants of this Agreement and the other matters set forth in Section 6.02. The Holdback Funds shall be the sole recourse of the Buyer Indemnified Parties to be indemnified pursuant to this Article 6 with respect to any breach of any Claim representation or warranty of Holdback Participants contained in this Agreement and the maximum aggregate liability of the Holdback Participants for breaches of representations or warranties of Holdback Participants contained in this Agreement shall only be enforceable if not exceed $3,750,000 (the Investors give written notice “Indemnity Cap”); provided however, that (A) the maximum aggregate liability of the Holdback Participants for any indemnification claim with respect to breach of the representations and warranties made in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) or 3.24 (Tax Matters) may exceed the Indemnity Cap but shall not exceed an amount equal to the Warrantors Purchase Price, (giving so far as practicable B) the amount and reasonable details maximum aggregate liability of the Claim) on or before the date being six (6) months from the date of completion and signing Holdback Participants for any indemnification claims with respect to breach of the audit representations and warranties made in Section 3.22(l) (Employee Benefit Plans) may not exceed an amount equal to the Indemnity Cap; provided, that the maximum aggregate liability of the Sellers and Management Employees for any indemnification claims with respect to breach of the financial year ended 31 March 2007representations and warranties made in Section 3.22(l) (Employee Benefit Plans) may exceed the Indemnity Cap but shall not exceed an amount equal to the Indemnity Cap plus $1,000,000 and any such excess shall be payable by the Sellers and Management Employees pro rata, in proportion to the Additional Indemnity Percentage of such Seller or Management Employee as set forth on Schedule I attached hereto, and (C) the maximum aggregate liability of the Holdback Participants for any breach of any covenant of Holdback Participants contained in this Agreement and indemnification pursuant to Sections 6.02(a)(i)(B), 6.02(a)(ii) and 6.02(a)(iii) may exceed the Indemnity Cap but shall not exceed an amount equal to the Purchase Price. Subject to the limitations set forth in this Section 6, the total amount required to be paid by any Holdback Participant pursuant to Section 6.02(a) shall be limited in the aggregate to the value of the Purchase Price received by such Holdback Participant (including portions of future holdback payments to which such Holdback Participant may be entitled). The Buyer Indemnified Parties shall not seek direct indemnification from any Holdback Participant with respect to any indemnification pursuant to this Agreement prior to exhaustion of the Holdback Funds.
(ii) From and after the Closing, the right of the Seller Indemnified Parties to be indemnified pursuant to this Article 6 shall be the sole and exclusive remedy with respect to any breach of any representation, warranty or covenant of Buyer contained in, or any other breach by Buyer of, this Agreement. The aggregate indemnity obligations of any Buyer Indemnifying Party pursuant to this Article 6 shall be uncapped.
(iii) Nothing in this Section 6.03(a) or elsewhere in this Agreement shall affect the parties’ right to specific performance or other similar non-monetary equitable remedy. The parties hereby waive any provision of any Applicable Law to the extent that it would limit or restrict the agreement contained in this Section 6.03(a).
(b) The Warrantors Without limiting the effect of any other limitation contained in this Article 6: (i) the indemnification provided for in Sections 6.02(a) and 6.02(b) shall not apply except to the extent that the aggregate Damages against which the applicable Indemnified Party would otherwise be liable in respect of any Claim entitled to be indemnified under this Article 6 exceeds $270,000 (the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (“Threshold”), in which event the Warrantors Indemnified Party shall, subject to the other limitations contained herein, be entitled to be indemnified from the first dollar thereof; provided however, that (A) the Threshold shall not apply to any breach of any representation or warranty made by Sellers in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.22(l) (Employee Benefit Plans), any breach of any covenant (including with respect to Article 5) made pursuant to this Agreement by any applicable party or any indemnification for Indemnified Taxes pursuant to Section 6.02(a)(ii) and (B) the Threshold shall be liable $25,000 (and not $270,000) only for the whole purposes of such liability and not merely for the excessany breach of any representation or warranty made by Sellers in Section 3.24 (Tax Matters).
(c) Where there have been breaches of the Warranties then the Investors The rights to indemnification under this Article 6 shall not be entitled to recover from affected by any Warrantor under the Warranties in respect knowledge acquired (or capable of all such breaches more than:
(ibeing acquired) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal at or prior to the aggregate Preference Issue Price paid for Closing that could give rise to an indemnification claim following the Investor SharesClosing.
(d) The Investors Nothing in this Section 6.03 shall limit any remedy a Buyer Indemnified Party or a Seller Indemnified Party may have against any Person for fraud under applicable tort laws. With respect to any claim against any Person for fraud under Applicable Laws, the rights and remedies provided herein shall be cumulative and not be entitled to recover from the Warrantors under the Warranties more than once in respect exclusive of the same damage sufferedany rights or remedies provided by Applicable Laws.
(e) The Warrantors No Buyer Indemnified Party or Seller Indemnified Party shall be under no liability under entitled to be compensated pursuant to this Article 6 more than once for the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosedsame Damage.
(f) If any Claim against Buyer and Holdback Participants acknowledge that, except as expressly provided in Articles 3 and 4 (as qualified by the Warrantors is notified to themdisclosures made in the Disclosure Schedule), the Warrantors (other than the Company) shall (so far as they are able) afford no party hereto, and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months none of the giving of written notice representatives of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arisesparties hereto, has made or is increased making any representations or extended by:
(i) any change to legislationwarranties whatsoever, any increase in rates of taxation implied or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceotherwise.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Notwithstanding any other provision of this Agreement, the Investors obligation of Seller to indemnify the Buyer Parties for their Losses pursuant to Section 11.03 shall in respect of any Claim no event exceed the Purchase Price in the aggregate. Furthermore, no indemnification shall only be enforceable if the Investors give written notice payable by Seller to the Warrantors Indemnified Persons pursuant to Section 11.03 until the total of all Losses incurred by the Buyer Parties exceed Ten Thousand Dollars (giving so far as practicable $10,000) in the aggregate, whereupon the amount and reasonable details of such Losses in excess of Ten Thousand Dollars ($10,000) shall be recoverable in accordance with the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007terms hereof.
(b) The Warrantors shall not be liable in respect Notwithstanding any other provision of any Claim under the Warranties unless this Agreement, the total cumulative liability obligation of the Warrantors Buyer Parties to indemnify the Seller Indemnified Parties for their Losses pursuant to Sections 11.04 and 11.05 shall in respect no event exceed the Purchase Price in the aggregate. Furthermore, no indemnification shall be payable by the Buyer Parties to the Seller Indemnified Parties pursuant to Sections 11.04 or 11.05 until the total of all Losses incurred by Seller exceed Ten Thousand Dollars ($10,000) in the aggregate, whereupon the amount of such Claims exceeds £25,000 Losses in excess of Ten Thousand Dollars (in which event the Warrantors $10,000) shall be liable for recoverable in accordance with the whole of such liability and not merely for the excess)terms hereof.
(c) Where there have been breaches The amount of Losses otherwise recoverable by an Indemnified Person under this Article XI shall be reduced to the extent to which any Tax liabilities of the Warranties then the Investors Indemnified Person are decreased by reason of any Loss in respect of which such Indemnified Person shall not be entitled to recover from any Warrantor indemnification under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Sharesthis Agreement.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors No Losses shall be under no liability under the Warranties in recoverable by an Indemnified Person with respect of to any matter which is covered by insurance or another source of indemnification, to the extent that proceeds of such insurance or other third party indemnitor are paid net of any costs incurred in connection with the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to themcollection thereof, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords Indemnified Person hereby agreeing to the Investors and their advisers seek all reasonable opportunities and facilities remedies against all applicable insurers or indemnitors prior to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the positionasserting claims hereunder.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in Notwithstanding the foregoing, the Liability of the Series G Holders under this clause 9.6 Agreement will be subject to the following limitations: In no event will the Series G Holders have any Liability under this Agreement unless and until the aggregate amount of Losses for which the Series G Holders would otherwise be liable under this Article 9 exceed $200,000 (the "Threshold"), at which point the Series G Holders' Liability shall be for all Losses, including the amount of the Threshold; provided, however, that the foregoing limitation shall not apply with respect to Losses directly or indirectly resulting from fraud or willful misconduct or any inaccuracy in or breach of the representations and warranties set forth in Section 3.15 (Tax Matters). The Series G Holders' Liability with respect to Indemnification Claims arising under Section 9.1(a) will not exceed the Escrow Fund, and the rights of a claim Purchaser Indemnified Party to assert Indemnification Claims against the Escrow Fund under this agreement against Article 9 will be the Warrantors in respect sole and exclusive remedy of a breach Purchaser Indemnified Party for any such claim (other than with respect to any equitable remedies available to any Purchaser Indemnified Party), and no Series G Holder will have any Liability in excess of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part its Pro Rata Share of the Warrantors:
(aEscrow Fund with respect to any such claims, except as provided in Section 9.5(a)(iii) hereof. The rights of initial sources for the Investors in respect of any Claim shall only Purchaser Indemnified Parties to recover Losses for which they may be enforceable if the Investors give written notice entitled under this Article 9 will be to the Warrantors (giving so far as practicable the amount set off, recover and reasonable details of the Claim) on or before the date being six (6) months retain such Losses from the date of completion Escrow Fund. At such time and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
Losses for which the Purchaser Indemnified Parties may seek indemnity under Section 9.1(b), (c), (d), (e), (f) If any Claim against the Warrantors is notified to them), the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
and/or (h) hereof exceed the amount of the Escrow Fund, the Purchaser Indemnified Parties will have the right to recover such remaining Losses directly from the Series G Holders; provided, however, that the Purchaser Indemnified Parties' recovery from each Series G Holder apart from the Escrow Fund shall be limited to each Series G Holder's Pro Rata Share of the Net Merger Consideration. For purposes of clarity, it is expressly understood that in no event and under no circumstances will Stockholders who do not own any shares of Series G Preferred Stock have any Liability under this Article 9. Notwithstanding any other provision of this Agreement, nothing in this Agreement limits the Liability of a party to another party for fraud or willful misconduct. The Warrantors shall not amount of any and all Losses for which indemnification is provided pursuant to this Article 9 will be liable for net of any Claim under the Warranties amounts of any credits, discounts, insurance proceeds, indemnification payments, contribution payments or reimbursements to the extent that it arisesactually received by, or is increased paid in kind to, the Purchaser Indemnified Party with respect to such Losses or extended by:
any of the circumstances giving rise thereto; provided, however, that for the sake of clarity, in no event shall the Purchaser or any Purchaser Indemnified Party be required to recover under any insurance policies or pursue any such credits, discounts, indemnification payments, contribution payments or reimbursements prior to seeking recovery against the Escrow Fund pursuant to this Article 9; provided however, that with respect to claims arising under Section 9.1(g) (a "9.1(g) Indemnification Claim"), the Purchaser shall be required to submit a claim seeking full recovery under the D&O Insurance , and the Purchaser shall use reasonable efforts to obtain payment of insurance proceeds in respect of such claim under the D&O Insurance to the extent available ("Claim Proceeds"). In no event, however, shall the Purchaser have any obligation to ▇▇▇ the D&O Insurance Carrier or engage in any other dispute resolution process with the D&O Insurance carrier to recover the Claim Proceeds nor shall the Purchaser have any obligation to delay or defer its efforts to assert a 9.1(g) Indemnification Claim or to pursue or prosecute any suit, arbitration or other process permitted by this Agreement to recover the Losses asserted under such 9.1(g) Indemnification Claim. If the D&O Insurance carrier fails to pay the Claim Proceeds to the Purchaser promptly after the Purchaser's claim submission, and if the Purchaser recovers any of its Losses under such 9.1(g) Indemnification Claim from any Series G Holders pursuant to a 9.1(g) Indemnification Claim then: (i) such recovered sums will be net of any change to legislation, any increase Claim Proceeds previously received by the Purchaser in rates respect of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement such 9.1(g) Indemnification Claim (if any); and not publicly known at the date of this Agreement;
(ii) any change in if the accounting reference date Purchaser recovers the full amount of the Company made on Losses arising from such 9.1(g) Indemnification Claim from the Escrow Fund and/or after directly from any Series G Holder(s), then the date Purchaser shall assign its rights to such unpaid Claim Proceeds in respect of this Agreement such 9.1(g) Indemnification Claim to the Series G Holder(s) who forfeited Escrow Funds or paid additional funds to satisfy such 9.1(g) Indemnification Claim (pro rata according to the amount of Escrow Funds forfeited and additional funds paid by each such Series G Holder to satisfy such 9.1(g) Indemnification Claim) to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantorsforfeitures and/or payments made by such Series G Holder(s).
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Merger Agreement (Adaptec Inc)
Limitations on Liability. 9.1 None of the Sellers shall be liable for any Claim unless the Sellers’ Representatives each receive from the Purchaser written notice (as soon as reasonably practicable after the Purchaser becomes aware of the fact, matter or circumstance reasonably likely to give rise to such Claim) containing such details as are then reasonably available of the Claim, together with supporting evidence of the Claim and the Purchaser’s estimate (on a without prejudice basis) of the amount of the Claim (provided that: (i) failure of the notice to contain all such details, supporting evidence and/or the Purchaser’s estimate of the amount of the Claim shall not operate to limit the liability of such Seller except to the extent that the liability of such Seller is materially increased as a result of such failure; and (ii) to the extent the notice does not contain all such details, supporting evidence and/or the Purchaser’s estimate of the amount of the Claim, the Purchaser shall promptly provide such information to the Sellers’ Representative upon it becoming available to the Purchaser) prior to the date falling: (i) [***] after (and excluding) the Closing Date in respect of a Claim (other than a Gap Control Claim or a [***]); (ii) [***] after (and excluding) the Closing Date in respect of a Gap Control Claim; and (iii) [***] after (and excluding) the Closing Date in respect of a [***].
9.2 The limitations set out liability of each Seller for each individual Claim shall be limited to such Seller’s Liability Percentage of such Claim, or where fewer than all the Sellers are liable in respect of such Claim, such Sellers shall be severally and proportionately liable hereunder in the respective proportions that each such Seller’s Liability Percentage bears to the aggregate Liability Percentages of all such Sellers who are liable in respect of such Claim. For the avoidance of doubt, no Seller shall be liable for any Claim arising from a breach of this Deed by any other Seller.
9.3 The aggregate total liability of each Seller in respect of all claims under the Transaction Documents and any interest, legal and professional fees and disbursements and all other costs and expenses (including Tax) related to such claims, shall be limited to, and shall in no event exceed, an amount equal to the aggregate of (a) the aggregate consideration and (b) the aggregate payment to redeem any Notes in each case paid to (or at the direction of) the relevant Seller at Closing pursuant to this Deed (provided that: (i) this clause 9.6 9 shall not apply to a claim under this agreement against the Warrantors in respect any liability of a breach of Warranty Seller pursuant to the undertakings and covenants given in clause 7; and (a “Claim”) which is (or the delay in discovery of which isii) the consequence of fraud, or dishonesty on the part aggregate total liability of the Warrantors:
Management Warrantors (aas defined in the Management Warranty Deed) The rights of the Investors in respect of any Claim claim made under the Management Warranty Deed shall only be enforceable if the Investors give written notice limited to the Warrantors (giving so far as practicable the amount and reasonable details £1.00 in accordance with Schedule 2 of the Claim) on or before the date being six (6) months from the date of completion and signing Management Warranty Deed), subject to clause 2.4 of the audit for the financial year ended 31 March 2007Management Warranty Deed.
(b) The Warrantors shall not be liable in respect 9.4 If a breach giving rise to a Claim is capable of any Claim under remedy, the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors Purchaser shall not be entitled to recover from make any Warrantor under the Warranties in respect of all such breaches more than:
claim (iwhether for damages or otherwise) in respect of such breach if the Founder, a total of 1 x his compensation received from relevant Seller remedies the Company in breach within 45 days after the year following Completion;
(ii) in respect date on which notice of the Company, a total sum equal breach is served on such Seller at no cost or loss to the aggregate Preference Issue Price paid for Purchaser Group. Without prejudice to its obligation at law and pursuant to clause 9.11 to mitigate any loss, the Investor SharesPurchaser shall (or shall procure that any relevant member of the Purchaser Group shall) at the cost and expense of the relevant Seller, provide reasonable assistance to any of the Sellers to remedy any such breach.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) 9.5 Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) be deemed to have been withdrawn [***] after the notice is given pursuant to clause 9.1 unless legal proceedings in respect thereof of it have been commenced within nine months by being both issued and served. No new Claim may be made in respect of the facts, matters, events or circumstances giving rise to any such withdrawn Claim.
9.6 If any Claim is based upon a liability which is contingent only, none of written the Sellers shall be liable to make any payment unless and until such contingent liability gives rise to an obligation to make a payment. This is without prejudice to the right of Purchaser to give notice of the ClaimClaim in accordance with clause 9.1 before such time notwithstanding that such contingent liability has not become an actual liability.
(h) The Warrantors 9.7 None of the Sellers shall not be liable for in respect of any Claim under the Warranties to the extent extent:
(a) that it ariseswould not have arisen but for, or is has been increased or extended bynot reduced as a result of, any voluntary act, omission or transaction carried out:
(i) any change to legislation, any increase in rates of taxation after Closing by the Purchaser or any member of the Purchaser Group (or its respective directors, employees, agents or successors in title) outside the ordinary course of business of a Target Company as at Closing; or
(ii) before Closing by any Seller or any of its respective Affiliates or any Target Company acting in accordance with the Transaction Documents or otherwise at the written direction or written request of the Purchaser or any member of the Purchaser Group;
(b) that it would not have arisen but for, or has been increased or not reduced as a result of, any:
(i) legislation not in force at the date of this Deed;
(ii) change of law (including a change in interpretation on the basis of case law), regulation, directive, requirement or administrative practice (including, but not limited to, published practice of a revenue authority, in each case made on and/or any Tax Authority) after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business PlanDeed; or
(iii) any change in any accounting policy or practice the rates of the Company made on and/or after Taxation in force at the date of this Agreement Deed or any imposition of any Taxation or any withdrawal of Relief not in effect at the date of this Deed;
(c) of any corresponding saving by, or net quantifiable financial benefit to, the Purchaser or any member of the Purchaser Group arising from the matter(s) giving rise to such Claim, including the amount (if any) by which any Tax for which the Purchaser or any member of the Purchaser Group would otherwise have been accountable or liable for assessment is actually reduced or extinguished as a result of the matter(s) giving rise to the extent not envisaged Claim;
(d) that provision or taken into account reserve is specifically made in the preparation Locked Box Accounts or Management Accounts for the matter, fact or circumstance giving rise to such Claim;
(e) that any loss or damage relating to a Target Company or the Business arises after that Target Company ceases to be a member of the Purchaser Group or the Business Plan save where ceases to be owned by a member of the Purchaser Group; or
(f) in respect of any Claim other than one pursuant to clause 8, that the Purchaser or any of its Affiliates are actually aware at the date of this Deed of the matter, fact or circumstance giving rise to such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceClaim.
9.8 The Sellers’ aggregate liability in respect of any Claim shall be reduced by an amount equal to any loss or damage to which the Claim related which has actually been recovered by the Purchaser or any other member of the Purchaser Group under a policy of insurance (i) The Warrantors after deducting any costs reasonably and properly incurred in making such recovery).
9.9 No member of the Purchaser Group shall not be liable entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any one liability, Cost, shortfall, deficiency, breach or other set of circumstances which gives rise to more than one Claim, and for this purpose recovery by any claim under member of the Warranties Purchaser Group shall be deemed to be a recovery by each of them.
9.10 Where a Seller has made a payment to the extent Purchaser in relation to any Claim and the Purchaser or any member of the Purchaser Group recovers (whether by insurance, payment, discount, credit, Relief or otherwise) from a third party a sum which indemnifies or compensates the Purchaser or any member of the Purchaser Group (in whole or in part) in respect of the liability or loss which is the subject of a Claim, the Purchaser or relevant member of the Purchaser Group shall pay to the relevant Seller as soon as practicable after receipt an amount equal to the lesser of (a) the amount recovered from the third party and (b) the amount previously paid by such Seller to the Purchaser in respect of such Claim, in each case net of Taxation incurred and less any costs of recovery reasonably and properly incurred (other than recoverable VAT).
9.11 The Purchaser shall (and shall procure that each member of the Purchaser Group shall) take all reasonable steps to avoid or mitigate any loss or damage which it may suffer in consequence of any breach by any Seller of the terms of this Deed or any fact, matter, event or circumstance giving likely to give rise to such claim is remediable and is remedied by or at a Claim.
9.12 Neither the expense Purchaser nor any member of the Warrantors within thirty days of the date on which written notice of such Purchaser Group shall be entitled to claim is given to the Warrantorsfor any punitive, special, indirect or consequential loss.
(j) The Warrantors 9.13 Nothing in this clause 9 shall not be liable have the effect of limiting or reducing any liability of a Seller in respect of a Claim arising as a result of fraud or fraudulent misrepresentation by such Seller.
9.14 Without limiting the foregoing, each of the Sellers and the Target Companies, on behalf of themselves and their respective subsidiaries, hereby agrees that it shall not institute, and shall cause its Representatives and Affiliates not to institute, and hereby waives, any Claim under legal action or proceeding (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of any entity against its owners or Affiliates) against the Warranties Financing Sources, arising under, in connection with or related to this Deed, the Financing, the Debt Commitment Letter or any of the transactions contemplated hereunder or thereunder against the Financing Sources, and that none of the Financing Sources shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) to the extent that it arisesSellers, the Target Companies or any of their subsidiaries for any obligations or liabilities arising under, in connection with or related to this Deed, the Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise or for any claim based on, in respect of, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at this Deed, the time Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, or its negotiation or execution hereunder or thereunder, and each of the Sellers and the Target Companies, on behalf of themselves and their respective subsidiaries, hereby waives and releases all such liabilities, claims and obligations against the Financing Sources; provided, that notwithstanding the claim is notified foregoing, nothing hereunder shall affect the rights of the Purchaser against the Financing Sources with respect to the Warrantors shall be contingent only, then Financing or the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liabilitytransactions contemplated hereunder.
Appears in 1 contract
Limitations on Liability. 10.1 The limitations set out liability of the Vendors under or in respect of the Warranties and/or the indemnities on their part contained in Clause 2 of the Tax Deed ("the Indemnities") shall be limited as follows:
10.1.1 no claim under the Warranties or the Indemnities ("a relevant claim") may be made unless written notice of the claim concerned has been given to the Vendors before the seventh anniversary of Completion in the case of any claim under the Indemnities and before the second anniversary of Completion in any other case;
10.1.2 no claim under the Warranties may be made unless and until the aggregate amount of all relevant claims exceeds US$350,000 although (subject to paragraph (D) of this clause 9.6 Clause) once such limit is exceeded the full amount of all such claims and any other claims shall be recoverable;
10.1.3 no claim under the Warranties may be made in respect of an individual breach unless it exceeds US$3,000; and
10.1.4 the maximum aggregate liability of all the Vendors under the Warranties and the Indemnities shall not apply exceed an amount equal to the total of the Consideration actually received by the Vendors on or prior to the date on which any claim thereunder is finally determined or agreed provided that if following such determination or agreement further consideration is received then such aggregate liability shall be increased by the further amount so received.
10.2 No relevant claim may be made:
10.2.1 under the Indemnities or Warranties if the claim has previously been satisfied in full pursuant to any other provision of this Agreement or any agreement entered into pursuant hereto;
10.2.2 under the Indemnities or such of the Warranties as relate to taxation ("Tax Warranties") if it would not have arisen but for some voluntary act or transaction carried out or effected after Completion (otherwise than as a consequence of any act or omission on or before Completion of any of the Vendors or the Company or any shareholder or officer thereof or any associate or connected person of all or any of the foregoing) by or on behalf of the Purchaser or the Company (not being an act or transaction in the ordinary course of its business) provided that the Purchaser or the Company were aware or ought reasonably to have been aware from matters fairly disclosed in the Disclosure Letter or from investigations carried out after Completion by the Purchaser into matters arising before Completion, at the time of such act or transaction that such claim would arise therefrom;
10.2.3 under the Indemnities or Warranties to the extent that the Company has previously received indemnity against any loss or damage suffered by it arising out of the breach or claim under this agreement against the Warrantors terms of any insurance policy of the Company in force at the date hereof;
10.2.4 under the Warranties or Indemnities to the extent that specific provision or specific reserve for the liability to which it relates was made in the Accounts or in respect of any matter fairly disclosed by way of a note to the Accounts;
10.2.5 under the Warranties or Indemnities if the matter giving rise to the same is solely attributable to or consequent upon any change of accounting policy of the Company on or after Completion, except where effected in order to conform to generally accepted accounting principles and policies in the United Kingdom not previously adopted by the Company;
10.2.6 under the Warranties or Indemnities if it arises or is increased by reason only of any legislation not in force at the date of Completion which takes effect retrospectively to the period before Completion or any increase after Completion in the rate of taxation with retrospective effect to before Completion;
10.2.7 under the Tax Warranties or the Indemnities to the extent that the loss arises only by reason of the transfer, winding-up or cessation of the business of the Company after completion unless such action was caused by the insolvency of the Company resulting from a breach of warranty.
10.3 The Purchaser shall be entitled to claim both under the Warranties and under the Indemnities by reference to the same subject matter. Any payment in respect of a breach of Warranty shall to such extent satisfy and discharge any claim made by the Purchaser under the Indemnities in respect of the same subject matter and vice versa.
10.4 The provisions of Clauses 3 to 6 (a “Claim”inclusive) which is (of the Tax Deed shall apply mutatis mutandis to any claims under the Tax Warranties.
10.5 Where the Purchaser or the delay in discovery Company is legally entitled to recover from some other person (not being the other of which is) the consequence of fraud, them or dishonesty on the part another member of the Warrantors:
(aPurchaser's Group or any employee or officer thereof or any Vendor or under any insurance policy effected after Completion) The rights of the Investors any sum in respect of any Claim matter the subject of a claim under the Warranties (other than the Tax Warranties as to which Clause 5 of the Tax Deed shall only be enforceable if apply) which the Investors give written notice Vendors shall have previously satisfied on terms reasonably satisfactory to the Warrantors Purchaser or the Company (giving so far as appropriate) shall (subject first to being indemnified and secured to its or their reasonable satisfaction against all reasonable costs and expenses which it or they may reasonably incur thereby) take all reasonable steps to enforce such recovery (keeping the Vendors' Representative informed of the progress of any action taken) and account to the Vendors originally satisfying the claim for any amounts they recover, in accordance with Clause 10.6 below.
10.6 If the liability or loss or damage the subject of a claim under the Warranties (other than the Tax Warranties as to which Clause 5 of the Tax Deed shall apply) has been made good in full (including all reasonable costs and expenses reasonably incurred) and the Purchaser or the Company or any other member of the Purchaser's Group subsequently recovers or receives from a third party (not being the other of them or any other member of the Purchaser's Group or a Vendor) a sum which is directly referable to the subject matter of such claim, the Purchaser or the Company or any other member of the Purchaser's Group (as appropriate having regard to which of them is the recipient) shall as soon as reasonably practicable following receipt of such sum pay to the Vendors' Solicitors on behalf of the Vendors originally satisfying the claim the net amount received after deducting any reasonable costs and expenses reasonably incurred by the Purchaser or the Company in recovering such sum from the third party (including without limitation any taxation payable by reason of the receipt thereof) but not in any event exceeding the amount and reasonable details originally paid to it in respect of the Claim) on or before claim concerned.
10.7 Except in the date being six (6) months from case of a fraudulent misrepresentation, no party shall in relation to the date of completion and signing sale hereunder of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not Shares or this Agreement be liable in respect of any Claim under representations warranties or similar assurances which are not contained and expressly given or assumed by them in this Agreement.
10.8 Any amount paid by the Warranties unless Vendors to the total cumulative liability Purchaser in satisfaction of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors any relevant claim shall be liable treated as a reduction by that amount in the Consideration for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors 10.9 Nothing contained in this Agreement or the Tax Deed or otherwise shall limit the liability of any party thereunder for fraudulent misrepresentation and the limitations in this clause 10 shall not be entitled apply to recover from limit the Warrantors under the Warranties more than once in respect liability of any of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties Vendors in respect of any matter breach of Warranty or any claim under the Indemnities to the extent that such breach or claim arises by reason of any fraud or wilful concealment on the matter or circumstance giving rise part of such Vendor of facts known to such liability was DisclosedVendor which constitutes a breach of Warranty by such Vendor.
(f) If 10.10 The limitations in this clause 10 shall not apply to any Claim against the Warrantors is notified relevant claim arising by reason of transactions effected between and/or loan benefits and/or other transactions made or deemed for tax purposes to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that have been made or provided on or before Completion by or to the Company affords to all or any of the Investors and their advisers Vendors or any director, shareholder associate or connected person of any or all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the positionforegoing.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings 10.11 The liability of each Vendor in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties and under the Tax Deed shall be limited from time to time in aggregate to the extent actual payments received by that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable Vendor in respect of any Claim under the Warranties to consideration provided that if following the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent determination or agreement to take or omit to take of liability for any such action was required under claim further consideration is received then such aggregate liability shall be increased the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedfurther amount so received.
(k) If 10.12 Where a breach of any claim under of the Warranties shall arise be in respect of a matter where the Company shall be insured against any loss or damage arising therefrom, the Purchaser shall not make any claim (as distinct from notice of claim) against the Vendors for breach of any such Warranty without first allowing the Company to make a claim against its insurers for compensation for the loss or damage suffered and any claim against the Vendors shall be limited (in addition to the limitation on the Vendors' liability elsewhere in this Agreement) to the amount by reason which the loss or damage suffered by the Purchaser as a result of some such breach shall exceed the compensation paid by such insurers to the Company.
10.13 In the event that the Purchaser becomes aware of any matter which may involve the Vendors in any liability which for breach of any of the Warranties the Purchaser shall within 14 days of such date notify the Vendors giving details of such matter as are at the time that the claim is notified or subsequently become available to the Warrantors Purchaser and the Company shall not settle or compromise any claim by a third party relating to such matter in excess of US$5,000 without the prior written consent of the Vendors such consent not to be unreasonably withheld.
10.14 The benefit of the Warranties and the Tax Deed may not be assigned in whole or in part by the Purchaser other than to another member of the Purchaser's Group for the time being.
10.15 As between the Vendors, they hereby agree that any liability arising on them under this Agreement shall be contingent only, then the Warrantors shared in proportion to their respective interests as specified in Column 2 of Schedule 1 and they shall not be under any obligation to make payment in respect thereof until such time as such contingent accept liability ceases to be contingent and becomes an actual liabilityindemnify each other accordingly.
Appears in 1 contract
Limitations on Liability. The limitations (i) Without limiting the effect of any other limitation set out forth in this clause 9.6 Section 6, the indemnification provided for in Section 6.2(a) shall not apply to a claim under this agreement against apply, and the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors Purchaser Indemnified Parties shall not be entitled to recover from exercise any Warrantor indemnification rights under the Warranties in respect of all such breaches more than:
(i) in respect of the Founderthis Agreement, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter except to the extent that the matter or circumstance giving rise aggregate amount of Damages against which the Purchaser Indemnified Parties would otherwise be entitled to be indemnified under Section 6.2(a) exceeds $225,000. If the aggregate amount of such liability was Disclosed.
Damages exceeds $225,000, then the Purchaser Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified for all Damages (f) If any Claim against including all Damages within such amount). Notwithstanding anything to the Warrantors is notified to themcontrary set forth herein, the Warrantors (other than the Companylimitations set forth in this Section 6.3(a) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change apply in the published practice event of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the WarrantorsFraud.
(j) The Warrantors aggregate amount of Damages payable by Seller under this Section 6 (including any amounts released to Purchaser from the Escrow Fund) shall not be liable exceed the Escrow Amount; provided, however, that the limitations set forth in this Section 6.3(b) shall not apply (and shall not limit the indemnification or other obligations of Seller) (i) in the event of Fraud and (ii) to any claim for indemnification in respect of any Claim under the Warranties matter (b) referred to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedin Schedule 6.2.
(k) If Purchaser shall use commercially reasonable efforts to seek, and shall cause each of its Affiliates to use commercially reasonable efforts to seek, full recovery under all insurance policies covering any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified Damages to the Warrantors same extent they would if such Damages were not subject to indemnification under this Agreement. In the event that an insurance recovery is actually made by Purchaser or any Affiliate of Purchaser with respect to the same Damages for which Purchaser has previously been indemnified under this Agreement, then a refund equal to the aggregate amount of the recovery shall be contingent onlymade as promptly as practicable to the Seller.
(l) The representations and warranties of Seller and the Company set forth in this Agreement constitute the sole and exclusive representations and warranties to Purchaser in connection with the transactions contemplated by this Agreement, then and Purchaser understands, acknowledges and agrees that all other representations and warranties of any kind or nature, express or implied (including any representations or warranties relating to the Warrantors shall future or historical financial condition, results of operations, assets or liabilities of the Company and the Subsidiary or the quality, quantity or condition of the assets of the Company and the Subsidiary) and including any representations and warranties about the accuracy or completeness of any information or documents previously provided are specifically disclaimed by Seller and Purchaser acknowledges and agrees that it has not be under relied, and none of Purchaser’s agents, employees or representatives is relying, on any obligation to make payment representations or warranties whatsoever regarding the subject matter of this Agreement, including regarding the accuracy or completeness of any such representations and warranties or the omission of any material information, whether express or implied, other than the representations and warranties in respect thereof until Section 2. Purchaser acknowledges and agrees that, except as otherwise provided in the Assignment and Assumption Agreement, no current or former stockholder, director, officer, employee, Affiliate or advisor of Seller has made or is making any representations, warranties or commitments whatsoever regarding the subject matter of this Agreement, including regarding the accuracy or completeness of any such time as such contingent liability ceases to be contingent other representations and becomes an actual liabilitywarranties or the omission of any material information, whether express or implied.
Appears in 1 contract
Sources: Purchase Agreement (Ipass Inc)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice Notwithstanding anything to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors contrary contained herein, Guarantor shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter this Guaranty to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) the liability was caused by actions, conditions or events that first occurred or arose at any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or time from and after the date that either (x) a sale pursuant to a foreclosure (either judicially or non-judicially) of the Mortgage or a conveyance of the Property in lieu of foreclosure of the Mortgage or (y) if Lender elects to bifurcate the Loan into one or more mezzanine loans that are secured by a pledge of the direct or indirect ownership interest in Borrower pursuant to the terms of the Loan Agreement, (1) a foreclosure sale for the collateral given as security for such mezzanine loan or (2) a conveyance of such collateral in lieu thereof and, in the case of clause (2) only, so long as, on such date, Lender shall have received a non-recourse carveout guaranty in the same form as this Agreement Guaranty (a “Replacement Guaranty”) pursuant to which an Approved Replacement Guarantor agrees to be liable under such Replacement Guaranty from and not publicly known at the date of this Agreement;
after such date, and (ii) the events, actions, or conditions which caused such liability of Borrower were not caused by the actions of Guarantor or any change Affiliate of Borrower or Guarantor following such foreclosure sale or deed or conveyance in lieu thereof (it being agreed and understood that Guarantor shall remain liable with respect to matters, events or circumstances which first occurred or arose prior to such date even if discovered after such date); provided, however, that Guarantor’s liability hereunder shall be automatically reinstated in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent event that the factapplicable foreclosure sale or deed or conveyance in lieu of thereof is set aside, matter, event rescinded or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect invalidated as a result of any Claim under the Warranties to the extent that it arisesinsolvency, bankruptcy, reorganization or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedother proceeding.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Non Recourse Carveout Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Limitations on Liability. (i) The limitations set out right of the Investor to be indemnified by the Company from an amount not to exceed ten percent (10.0%) of the Aggregate Purchase Price paid for Purchased Shares pursuant to this Agreement (the “Company Maximum Indemnity Amount”) shall be the sole and exclusive remedy available to the Investor in this clause 9.6 respect of any indemnification for matters covered under Section 8.2(a)(i) (the “Indemnified Investor Representation Liabilities”); provided, however, that the right of the Investor to be indemnified solely and exclusively from the Company Maximum Indemnity Amount for the Indemnified Investor Representation Liabilities shall not apply to a claim under claims of fraud by the Company.
(ii) The right of the Company to be indemnified by the Investor from an amount not to exceed ten percent (10.0%) of the Aggregate Purchase Price paid for Purchased Shares pursuant to this agreement against Agreement (the Warrantors in respect of a breach of Warranty (a “ClaimInvestor Maximum Indemnity Amount”) which is (or shall be the delay in discovery of which is) sole and exclusive remedy available to the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors Company in respect of any Claim shall only be enforceable if indemnification for matters covered under Section 8.2(b)(i) (the Investors give written notice “Indemnified Company Representation Liabilities”) with respect to the Warrantors (giving so far as practicable Investor; provided, however, that the amount and reasonable details right of the Claim) on or before the date being six (6) months Company to be indemnified solely and exclusively from the date of completion and signing of the audit Investor Maximum Indemnity Amount for the financial year ended 31 March 2007Indemnified Company Representation Liabilities shall not apply to claims of fraud by the Investor.
(biii) The Warrantors Notwithstanding anything to the contrary contained in this Agreement, except with respect to claims of fraud by the Company, the Company not shall not be liable to an Indemnified Investor Party in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Indemnified Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter Representation Liabilities except to the extent that the matter or circumstance giving rise aggregate amount (without duplication) of Indemnified Investor Representation Liabilities of the party seeking indemnification exceeds $3,000,000, at which point the Company shall be liable to such liability was DisclosedIndemnified Investor Party for the total amount of such Indemnified Investor Representation Liabilities (subject to the limitations set forth in Section 8.2(c)(i)).
(fiv) If any Claim against Notwithstanding anything to the Warrantors is notified contrary contained in this Agreement, except with respect to themclaims of fraud by the Investor, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim Investor not shall be deemed liable to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings an Indemnified Company Party in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Indemnified Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties Representation Liabilities except to the extent that the factaggregate amount (without duplication) of Indemnified Company Representation Liabilities of the party seeking indemnification exceeds $3,000,000, matter, event or circumstance giving rise at which point the Investor shall be liable to such claim is remediable and is remedied by or at Indemnified Company Party for the expense of the Warrantors within thirty days of the date on which written notice total amount of such claim is given Indemnified Company Representation Liabilities (subject to the Warrantorslimitations set forth in Section 8.2(c)(ii)).
(jv) The Warrantors No current or former stockholder, director, officer, employee, Affiliate or advisor of the Company shall not be liable in respect have any liability of any Claim under the Warranties nature to the extent that it arises, Investor with respect to any matter arising under or is increased related to this Agreement or extended by:the transactions contemplated hereby.
(ivi) No current or former stockholder, director, officer, employee, Affiliate or advisor of the Investor shall have any action or omission liability of any nature to take action by the Company or one any of its subsidiaries taken at the express and written request of an Investor Majority Subsidiaries with respect to any matter arising under or with the consent of an Investor Majority;
(ii) any action or omission related to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from or the Investors and/or a BVP Director but refusedtransactions contemplated hereby.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights Nothing herein shall be construed to require the governing body of the Investors Lessee to appropriate any money to pay any Rentals hereunder. If the Lessee fails to pay any portion of the Rentals which are due hereunder or an Event of Default hereunder or an Event of Nonappropriation occurs, the Lessee shall immediately (but in respect no event earlier than the expiration of any Claim shall only be enforceable if the Investors give written notice Initial Term or the then current Renewal Term for which the Lessee has paid or appropriated moneys sufficient to pay all Rentals due for such Renewal Term, in the case of an Event of Nonappropriation) quit and vacate the Leased Property in accordance with the schedule therefor provided by the Lessee to the Warrantors Trustee in accordance with Section 4.09(b) hereof, and its obligation to pay any Rentals (giving so far except for Rentals theretofore appropriated and then available for such purpose) shall thereupon cease, it being understood between the parties that neither the State of Utah nor any political subdivision thereof, except the Lessee as practicable provided herein, is obligated to pay any Rentals due to the amount and reasonable details Lessor hereunder. Should the Lessee fail to pay any portion of the Claim) on or before required Rentals and then fail immediately to quit and vacate the date being six (6) months Leased Property to the extent required, the Trustee in accordance with the Indenture may immediately bring legal action to evict the Lessee from the date of completion Project Site and signing commence proceedings to foreclose the lien of the audit Indenture pursuant to the Indenture. The Lessee hereby agrees to pay as damages for its failure immediately to quit and vacate the financial year ended 31 March 2007Leased Property upon termination of the Initial Term or the then current Renewal Term, as the case may be, of the Lease in violation of the terms hereof and Section 17D-2-405 of the Act an amount equal to the Base Rentals otherwise payable during such period prorated on a daily basis and any reasonable Additional Rentals attributable to such period on the basis of the services provided. No judgment may be entered against the State of Utah or any political subdivision of the State of Utah for failure to pay any Rentals hereunder, except to the extent that the Lessee has theretofore incurred liability to pay any such Rentals through its actual use, occupancy and operation of the Leased Property, or through its exercise of an option that renews the Lease for an additional Renewal Term for which moneys have been appropriated, or is otherwise obligated to pay such Rentals pursuant to this Lease.
(b) The Warrantors Rentals constitute current expenses of the Lessee, and the Lessee’s obligations hereunder are from year to year only and do not constitute a mandatory payment obligation of the Lessee in any ensuing Fiscal Year beyond the then current Fiscal Year. No provision hereof shall be construed or interpreted as creating a general obligation or other indebtedness of the State of Utah or any political subdivision of the State of Utah within the meaning of any constitutional or statutory debt limitation. Neither the execution, delivery and performance of the Lease nor the issuance of the Bonds directly or indirectly obligates the Lessee to make any payments hereunder beyond those appropriated for the Lessee’s then current Fiscal Year; provided, however, that nothing herein shall be construed to limit the rights of the Bondowners or the Trustee to receive any amounts which may be realized from the Trust Estate pursuant to the Indenture. I No obligation assumed by or imposed upon the Lessor hereunder shall require the performance of any act by the Lessor except to the extent, if any, that the cost and expense of such performance may be provided for from the proceeds of sale of the Bonds or paid by the Lessee hereunder as Additional Rental. Failure of the Lessor to perform any such act shall not be liable in respect of any Claim under entitle the Warranties unless Lessee to terminate the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess)Lease.
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Master Lease Agreement
Limitations on Liability. 2.3.1 The limitations set out in this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors Indemnified Persons shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
same claim (ia) in respect of the Founder, a total of 1 x his compensation received twice from the Company in the year following Completion;
Indemnifying Person; and/or (iib) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter indemnification payments or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them payments for damages for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not same claim have actually been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action paid out by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission Lessors to take action where consent or agreement ▇▇▇▇▇▇▇▇▇▇ pursuant to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedLease Deed.
(k) 2.3.2 If any claim under the Warranties shall arise this Agreement arises by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent onlyonly or otherwise not capable of being quantified, then the Warrantors Indemnifying Person shall not be under any obligation to make any payment in respect thereof of such breach or claim unless and until such time as such contingent liability ceases to be contingent and becomes is actually suffered or incurred by the Indemnified Persons.
2.3.3 The Indemnified Persons shall use all reasonable efforts to take such reasonable steps, including those recommended by the Indemnifying Person, to avoid or mitigate any loss or liability suffered or incurred by the Indemnified Persons in relation to any actual or potential claim.
2.3.4 Notwithstanding anything herein to the contrary, where the Indemnified Persons are at any time entitled to recover from some other Person (including under any policy of insurance) any sum in respect of any matter giving rise to a claim, the Indemnified Persons shall, without prejudice to the rights granted to them under this Agreement, use all reasonable efforts to pursue and enforce such recovery (including seeking legal advice on the feasibility and chance of success of such claim). If the Indemnifying Person pay to the Indemnified Persons any indemnity amount in respect of a claim and the Indemnified Persons subsequently recovers an actual liabilityamount which is referable to the matter giving rise to such claim from such other Person, then: (i) if the amount paid by the Indemnifying Person in respect of the claim is more than the Sum Recovered, the Indemnified Persons shall pay to the Indemnifying Person the Sum Recovered, and (ii) if the amount paid by the Indemnifying Person in respect of the claim is less than or equal to the Sum Recovered, the Indemnified Persons shall pay to the Indemnifying Person an amount equal to the amount paid by the Indemnifying Person to them in respect of such matter. For the purposes of this Clause 2.3.4, the term ‘Sum Recovered’ means an amount equal to the total of the amount recovered from the other Person less any reasonable expenses and/or costs incurred in recovering the amount from the Person.
Appears in 1 contract
Sources: Indemnification Agreement
Limitations on Liability. The limitations set out in Notwithstanding any other provision of this clause 9.6 shall not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more thanAgreement:
(i) in respect of The Buyer Indemnified Parties shall have the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(iiright to payment by Sellers under Section 8(b) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter only if and to the extent that the matter or circumstance giving rise Buyer Indemnified Parties shall have incurred indemnifiable Losses in excess of $3,000,000.00 (the “Deductible”); provided, further, that the maximum aggregate obligation of Sellers to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the CompanyBuyer Indemnified Parties under this Section 8(e) shall not exceed $20,000,000.00 (so far as they the “Cap”). Solely for purposes of determining whether Buyer shall have incurred indemnifiable Losses in excess of the Deductible or whether such Losses are able) afford and procure that in excess of the Company affords to Cap, Losses indemnifiable under the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies terms of them for the purpose of ascertaining the position.
(g) Any Claim Outsourcing Asset Purchase Agreement shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required Losses indemnifiable under the terms of this Agreement Agreement. Notwithstanding anything to the contrary herein, the limitations contained in the provisos above shall not apply to (A) any indemnification for any Losses incurred by the Buyer Indemnified Parties for any intentional misrepresentation or fraudulent breach of a representation or warranty, (B) any indemnification for any Losses incurred by the Buyer Indemnified Parties in connection with any Liability indemnified by Sellers under Sections 8(b)(ii)-(vi), or (C) any indemnification for Losses incurred by the Buyer Indemnified Parties in connection with any Liability for breaches of any of the Sellers’ Transaction Representations and requested from the Investors and/or a BVP Director but refusedWarranties.
(kii) Neither Buyer nor Sellers shall have any liability under this Agreement for any breach of or inaccuracy in any representation or warranty in excess of the Purchase Price in the aggregate.
(iii) The amount of any Loss for which indemnification is provided under Section 8 shall be net of an amount equal to the Tax benefit actually realized, if any, attributable to such Loss. If the amount to be netted hereunder from any payment required under Section 8(b) or 8(c) is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to Section 8, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Section 8 had such determination been made at the time of such payment.
(iv) Notwithstanding anything to the contrary contained in this Agreement, Buyer shall reduce its claim for indemnification under Section 8 with respect to any Losses or alleged Losses by the amount that the Buyer shall have received as a result of a reduction in the Closing Net Investment reflected in the Closing Financial Statements on account of any matter applicable to this Section 8 forming the basis for such Losses or alleged Losses.
(v) It is the parties’ intention that claims against the Transaction Insurance Policy, and the Environmental Insurance Policy (as to breaches for representations and warranties under Section 3(z) of this Agreement), shall be the sole sources of payment with respect to indemnifiable Losses claimed by Buyer under Section 8(b)(i) (other than for breaches of representations and warranties under Sections 3(o), and 3(q)), 8(b)(iii) and (iv) of this Agreement. Buyer shall provide Sellers with copies of the Transaction Insurance Policy and the Environmental Insurance Policy as well as any and all amendments or supplements thereto. In the event of a claim, Buyer shall provide Sellers with a copy of all correspondence and documents with respect to the claim. In the event that the Transaction Insurance Company or the Environmental Insurance Company denies the claim, the Sellers shall remain obligated to indemnify Buyer with respect to such Losses provided, however, that such obligation shall be conditioned upon the Buyer’s diligent good faith and commercially reasonable efforts to assert its claim under the Warranties Transaction Insurance Policy or the Environmental Insurance Policy, respectively, and its exhaustion of all procedures set forth in the Transaction Insurance Policy or the Environmental Insurance Policy with respect to appeal of any denial of claim or reservation of rights by the Transaction Insurance Company or the Environmental Insurance Company, respectively. The parties shall arise cooperate in resolving any Loss with respect to which the Transaction Insurance Company or the Environmental Insurance Company has denied coverage, including the assignment of rights from the Buyer to the Sellers upon request.
(vi) Notwithstanding anything contained herein or otherwise to the contrary, including Sections 8(a), 8(e)(i), 8(e)(ii), and 8(e)(iii), nothing herein shall be deemed to limit any Party’s rights to recover any or all Losses incurred or suffered by reason it relating to or arising out of some liability which at the time or in connection with fraud, it being understood and agreed that the claim is notified right to recover such Losses shall survive forever; provided, however, in no event shall either Buyer or Sellers have any liability for indemnification under Section 8 in excess of the Purchase Price in the aggregate.
(vii) Notwithstanding anything contained herein or otherwise to the Warrantors shall be contingent onlycontrary, then Buyer may recover for a Loss related to an Assumed Liability only to the Warrantors shall not be under any obligation extent that such Loss results from a breach of a representation or warranty by Sellers or Remy hereunder, or to make payment in respect thereof until the extent such time as such contingent liability ceases to be contingent and becomes an actual liabilityLoss results from the intentional misrepresentation or fraud of Sellers or Remy.
Appears in 1 contract
Sources: Asset Purchase Agreement (Remy International, Inc.)
Limitations on Liability. The limitations set out in this clause 9.6 10.4.1 Sellers shall not apply be required to a claim indemnify, defend, hold harmless, pay or reimburse the Buyer Indemnitees under this agreement against Section 10.2.1(a) unless and until the Warrantors aggregate amount of all Losses in respect of a breach of Warranty indemnification under Section 10.2.1(a) exceeds $200,000 (a the “ClaimDeductible”) which is (or and once the delay Deductible has been exceeded, Sellers shall only be required to indemnify, defend, hold harmless, pay and reimburse for Losses in discovery of which is) the consequence of fraud, or dishonesty on the part excess of the Warrantors:Deductible.
10.4.2 Buyers shall not be required to indemnify, defend, hold harmless, pay or reimburse the Seller Indemnitees under Section 10.3(a) unless and until the aggregate amount of all Losses in respect of indemnification under Section 10.3(a) exceeds the Deductible and once the Deductible has been exceeded, Buyer shall only be required to indemnify, defend, hold harmless, pay and reimburse for Losses in excess of the Deductible.
10.4.3 In no event shall the aggregate amount of Losses to be paid to (a) The rights of the Investors Buyer Indemnitees pursuant to Section 10.2.1(a) exceed $5,000,000 (the “Cap”) and (b) the Seller Indemnitees pursuant to Section 10.3(a) exceed the Cap.
10.4.4 Sellers shall not be required to indemnify, defend, hold harmless, pay or reimburse the Buyer Indemnitees in respect of any Claim Losses arising from any Tax related to a Pre-Closing Period after the applicable statute of limitations with respect to such Tax.
10.4.5 under Section 10.2.8 (other than for Taxes Paid on Initial Returns) unless and until the aggregate amount of the Losses in respect of indemnification under [NEWYORK 3251393_44] Section 10.2.8 (other than Taxes Paid on Initial Returns) exceeds $50,000 (the “Tax Deductible”) and once the Tax Deductible has been exceeded Sellers shall only be enforceable if required to indemnify, defend, hold harmless, pay and reimburse for Losses in excess of the Investors give written notice Tax Deductible.
10.4.6 Other than for Taxes Paid on Initial Returns, Sellers shall only be liable for 50% of the Losses of the Buyer Indemnitees under Section 10.2.8 (in excess of the Tax Deductible) and in no event shall the aggregate amount of Losses to be paid to the Warrantors Buyer Indemnitees pursuant to Section 10.2.8 exceed $3,000,000 (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007“Tax Cap”).
(b) The Warrantors 10.4.7 Any Indemnified Party that becomes aware of any Losses for which it seeks indemnification under this Section 10 shall not be liable required to use commercially reasonable efforts to mitigate such Losses.
10.4.8 With respect to each indemnification obligation contained in this Agreement:
10.4.8.1 all Losses shall be net of any amounts that have been recovered by the Buyer Indemnitees or Seller Indemnitees pursuant to any indemnification by, or indemnification agreement with, any third party or any insurance policy, including representation and warranty insurance, or other cash receipts or sources of reimbursement or any Tax benefit actually realized by the Buyer Indemnitees or Seller Indemnitees in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following CompletionLosses;
(ii) in respect 10.4.8.2 No Party shall have any Liability under any provision of the Companythis Agreement for any punitive, a total sum equal incidental, consequential, special or indirect damages, including business interruption, loss of future revenue whether or not expected, profits or income or loss of business reputation or opportunity relating to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect breach or alleged breach of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter this Agreement, except to the extent that the matter or circumstance giving rise to such liability was Discloseddamages are specifically included in Third-Party Claims and result in Losses; and
10.4.8.3 Any claim for indemnification made under this Section 10 by any Party shall be bona fide and made in good faith.
(f) If any Claim against 10.4.9 The Parties acknowledge and agree that various provisions of the Warrantors is notified Transaction Documents relate to themthe continued relationship of Buyers and their Affiliates with Sellers and their Affiliates following the Closing, including the supply of products under the Supply Agreement, the Warrantors (other than license of certain Intellectual Property under the Company) shall (so far as they are able) afford Intellectual Property Agreement and procure that the Company affords provision of deliverables and services under the Transition Services Agreement, and the rights and obligations of the Parties relating to the Investors Distributed ARG Business after the Closing. For the avoidance of doubt, the indemnity provided under Section 10.2.6 shall not amend, modify, replace or supersede such terms and their advisers all reasonable opportunities conditions (including such terms and facilities to inspect all relevant books conditions governing the rights and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months obligations of the giving of written notice Parties with respect to the Distributed ARG Business) of the ClaimTransaction Documents.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out (a) Notwithstanding anything in this clause 9.6 Agreement to the contrary, in no event shall not apply to a claim the cumulative indemnification obligations of the Stockholders under this agreement against Agreement in the Warrantors aggregate exceed an amount equal to the Indemnity Escrow Amount less any amount paid to Parent from the Indemnity Escrow Account pursuant to Section 2.8. The right of the Parent Indemnified Parties to indemnification or any other payment pursuant to this Agreement shall be limited to the Indemnity Escrow Funds (other than income earned in respect of a breach of Warranty (a “Claim”the Indemnity Escrow Funds) which is (or then held in escrow pursuant to the delay in discovery of which is) Escrow Agreement and not previously distributed pursuant to the consequence of fraud, or dishonesty on the part terms of the Warrantors:
(a) The rights of Escrow Agreement, Section 2.8 or this Article VIII and no indemnification or other payment shall be payable other than from the Investors in respect remaining Indemnity Escrow Funds, if any. In no event shall any Stockholder have any personal liability for the payment of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007indemnification payments hereunder.
(b) The Warrantors Notwithstanding anything in this Agreement to the contrary, the Stockholders shall not be liable to the Parent Indemnified Parties for indemnification under Section 8.2(a) to the extent such Losses were actually included or otherwise actually taken into account in respect the calculation of any Claim under Cash, Indebtedness or Company Transaction Expenses for purposes of calculating the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess)Merger Consideration.
(c) Where there have been breaches of Notwithstanding anything in this Agreement to the Warranties then contrary, the Investors Stockholders shall not be entitled liable to recover from the Parent Indemnified Parties for indemnification under Section 8.2(a)(i) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any Warrantor under inaccuracy in or breach of any representation or warranty in Section 4.1, Section 4.2, Section 4.3, Section 4.20 (collectively, the Warranties “Stockholder Excepted Matters”), until the aggregate amount of all Losses in respect of all such breaches more than:
indemnification under Section 8.2(a)(i) (i) in other than those based upon, arising out of, with respect to or by reason of the FounderStockholder Excepted Matters) exceeds eight million dollars ($8,000,000) (the “Basket Amount”), a total whereupon the Parent Indemnified Parties shall be entitled to receive only amounts for Losses in excess of 1 x his compensation received the Basket Amount and, in which case, the Parent Indemnified Parties shall be entitled to indemnification for the amount of such Losses up to the Indemnity Escrow Amount less any previous disbursements pursuant to Section 2.8 or this Article VIII. No individual claim (or series of related claims arising from the Company in same underlying facts, events or circumstances) by a Parent Indemnified Party may be asserted (and no Parent Indemnified Party shall be entitled to indemnification with respect to any such claim or series of related claims arising from the year following Completion;
same underlying facts, events or circumstances) with respect to Section 8.2(a)(i) unless the aggregate amount of Losses that would be payable with respect to such claim (iior series of related claims arising from the same underlying facts, events or circumstances) in respect exceeds an amount equal to $175,000, and any such individual claim (or series of related claims arising from the same underlying facts, events or circumstances) for amounts less than $175,000 shall not be applied to or considered for purposes of determining whether the Basket Amount has been reached. Losses incurred by Parent Indemnified Parties for any breach of a Stockholder Excepted Matter or any of the Company, a total sum equal matters set forth in Sections 8.2(a)(ii) through 8.2(a)(iv) shall not be subject to the aggregate Preference Issue Price paid for the Investor SharesBasket Amount.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once Notwithstanding anything in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement contrary, neither Parent nor Merger Sub shall be liable to the extent not envisaged Stockholder Indemnified Parties for indemnification under Section 8.2(b)(i) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or taken into account by reason of any inaccuracy in or breach of any representation or warranty in Section 5.1, Section 5.2 and Section 5.6 (collectively, the preparation “Parent Excepted Matters”), until the aggregate amount of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable all Losses in respect of any Claim indemnification under the Warranties Section 8.2(b)(i) (other than those based upon, arising out of, with respect to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that Parent Excepted Matters) exceeds the claim is notified to Basket Amount, whereupon the Warrantors Stockholder Indemnified Parties shall be contingent onlyentitled to receive only amounts for Losses in excess of the Basket Amount. No individual claim (or series of related claims arising from the same underlying facts, then events or circumstances) by a Stockholder Indemnified Party may be asserted (and no Stockholder Indemnified Party shall be entitled to indemnification with respect to any such claim or series of related claims arising from the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.same underlying facts, events or
Appears in 1 contract
Sources: Merger Agreement (RCS Capital Corp)
Limitations on Liability. The limitations set out in this clause 9.6 (a) Notwithstanding the foregoing, the Sellers shall not apply be obligated to indemnify and hold harmless any Buyer Indemnitee from Damages, (i) in the case of a claim for Damages under this agreement against the Warrantors in respect of Section 8.2(a) arising from a breach of Warranty representations and warranties relating solely and exclusively to any of the Subsidiaries, unless and until the aggregate amount of such Damages exceeds $4,500,000, (a “Claim”ii) which is in the case of any other claim for Damages under Section 8.2(a) for breach of any representation or warranty, unless and until the aggregate amount of such Damages exceeds $1,000,000 or (iii) in the case of any claim for Damages under Section 8.2(e), unless and until the aggregate amount of such Damages exceeds $10,000. The Buyer shall not be obligated to indemnify and hold harmless any Seller Indemnitee from Damages with respect to one or more claims under Section 8.3(a) for any breach of any representation or warranty, unless and until the aggregate amount of such Damages exceeds $4,500,000. The aggregate indemnification liability of the Sellers or the delay Buyer for Damages (other than any Damages derived from or attributable to any Employee Benefit Plan other than an Assumed Plan, any Tax Item, any Excluded Liabilities and any Designated Employee Liability) under this Agreement shall not exceed twenty-five percent (25%) of the Purchase Price. The aggregate indemnification liability of the Sellers for Damages attributable to any Designated Employee Liability under this Agreement shall not exceed $75,000. Notwithstanding the foregoing, nothing contained in discovery of which is) the consequence of fraudManagement Certificate shall act to qualify, limit, or dishonesty on reduce Seller's indemnification obligations pursuant to Section 8.2, except with respect to those representations qualified by Sellers' Knowledge. Notwithstanding anything to the part contrary contained herein, Sellers shall not be obligated to indemnify and hold harmless any Buyer Indemnitee against indirect, special, incidental, consequential or punitive damages, except to the extent any of the Warrantors:
(a) The rights of the Investors foregoing constitute Damages payable to third parties by Buyer in respect of connection with any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007third party claim.
(b) The Warrantors shall not be liable Any indemnification payment made pursuant to this Agreement in respect of any Claim under claim (i) shall be net of any insurance proceeds realized by and paid to the Warranties unless the total cumulative liability of the Warrantors indemnified party in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability claim; and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum shall be reduced by an amount equal to any tax benefits attributable to such claim, and increased by an amount equal to any taxes attributable to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect receipt of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter such payment, but only to the extent that such tax benefits are actually realized, or such taxes are actually paid, as the matter case may be, by the Sellers or circumstance giving rise by the Buyer or by any consolidated, combined, or unitary group of which the Buyer or the Sellers are a member. The indemnified party shall use its reasonable efforts to such liability was Disclosed.
(f) If make insurance claims relating to any Claim against the Warrantors claim for which it is notified seeking indemnification pursuant to them, the Warrantors (other than the Company) this Section. Any indemnity payment under this Agreement shall (so far be treated as they are able) afford and procure that the Company affords an adjustment to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the positionpurchase price.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations rights of a Purchaser Indemnified Party to assert claims against the Holdback Fund under this Article 9 will be the sole and exclusive remedy of a Purchaser Indemnified Party for any indemnification claims in respect of this Agreement (other than with respect to any injunctive relief available to any Purchaser Indemnified Party or any rights a Purchaser Indemnified Party may have against a particular Securityholder with respect to such representations and warranties of the Securityholder as are set forth in the Transmittal Letter executed and delivered by such Securityholder) and the transactions contemplated by this Agreement, and Purchaser Indemnified Parties will have no other rights or remedies for money damages in connection with any breach of this Agreement or any other Loss arising out of the negotiation, entry into or consummation of the transactions contemplated by this Agreement, and no Securityholder will have any liability in excess of its pro rata share of the then remaining amount in the Holdback Fund (in each case other than with respect to such representations set forth in such Securityholder's Transmittal Letter). After the Closing Date, no party may seek the rescission of the transactions contemplated by this clause 9.6 shall Agreement. The Holdback Fund will be the sole and exclusive source for the Purchaser Indemnified Parties to recover Losses for which they may be entitled under this Article 9. Notwithstanding anything contained herein to the contrary, the Purchaser Indemnified Parties will not have any rights to indemnification under this Agreement unless and until all aggregate Losses subject to such indemnification collectively exceed $750,000 (the "Threshold"), whereupon such indemnification will thereafter be available (subject to the other provisions of this Agreement) solely with respect to the amount of such Losses that exceed the Threshold; provided, however, that the Threshold will not apply to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change inaccuracy in or breach of any representation or warranty of the Company contained in Section 3.4 or (ii) the matters described in Sections 9.1(c) through 9.1(f) hereof (and Losses pursuant to legislation, any increase inaccuracy in rates or breach of taxation such representation or any change warranty of the Company contained in Section 3.4 or the published practice of a revenue authority, matters described in each case made on and/or after Sections 9.1(c) through 9.1(f) will not count toward the date of Threshold). In no event will the Purchaser's Liability under this Agreement and not publicly known at exceed the date amount of the Merger Consideration. Notwithstanding any other provision of this Agreement;
(ii) any change , nothing in the accounting reference date of the Company made on and/or after the date of this Agreement limits the Liability of a party to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where another party for fraud by such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceparty.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out 6.1 Subject as provided below or in the Tax Deed, the liability of the Vendors under or in respect of the Warranties and/or the covenants on their part contained in the Tax Deed ("THE INDEMNITIES") shall be limited as follows:-
(A) no claim under the Warranties or the Indemnities ("A RELEVANT CLAIM") may be made unless written notice of the claim concerned has been given to the Vendors before the seventh anniversary of Completion in the case of the Indemnities and the Warranties relating to taxation ("THE TAX WARRANTIES") and before 31st December 1998 in any other case;
(B) no claim under the Warranties may be made unless and until the aggregate amount of all relevant claims exceeds [pound]50,000 although (subject to paragraph (C) of this clause 9.6 Clause) once such limit is exceeded the full amount of all such claims and any other claims shall be recoverable; and
(C) No claim will lie by reason of any single breach of the Warranties unless the amount of the claim arising from the breach exceeds [pound]1,000. For this purpose a series of related claims arising from the same circumstances each claim being for an amount of less than [pound]1,000 shall be treated as a single claim and the amounts aggregated accordingly.
(D) the maximum aggregate liability of each of the Vendors under the Warranties and the Indemnities shall not apply exceed an amount equal to a the aggregate of the Consideration received by each Vendor.
6.2 The amount of any claim by the Purchaser shall be reduced to the extent that:
(A) the claim has previously been satisfied pursuant to any other provision of this Agreement or any agreement entered into pursuant hereto; or
(B) the Company concerned has previously recovered under this agreement against the Warrantors terms of any insurance policy of such Company in force at the date hereof any loss or damage the subject of the relevant claim; or
(C) provision or reserve for the liability to which it relates was made in the Accounts; or
(D) the liability to which it relates was reflected in the calculation of the Deferred Consideration.
6.3 The Purchaser shall be entitled to claim both under the Warranties and under the Indemnities by reference to the same subject matter, but any payment in respect of a breach of Warranty (a “Claim”) which is (or shall to such extent satisfy and discharge any claim made by the delay in discovery of which is) Purchaser under the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors Indemnities in respect of the same subject matter and vice versa.
6.4 The provisions of Clauses 3 to 6 (inclusive) of the Tax Deed shall apply mutatis mutandis to any Claim claims under the Tax Warranties.
6.5 If the liability or loss or damage the subject of a claim under the Warranties (other than the Tax Warranties as to which Clause 5 of the Tax Deed shall only be enforceable if apply) has previously been made good in full (including all reasonable third party costs and expenses including, but not limited to, legal and professional adviser's costs, the Investors give written notice amount of any insurance excess and increased insurance premium) and the Purchaser or a Company subsequently recovers or receives from a third party (not being the other of them or any other member of the Purchaser's Group or a Vendor) a sum which is directly referable to the Warrantors subject matter of such claim, the Purchaser or the Company (giving so far as practicable appropriate having regard to which of them is the recipient) shall promptly after the receipt of such sum pay to the Vendors' Solicitors on behalf of the Vendors originally satisfying the claim the net amount received after deducting any costs and expenses reasonably incurred by the Purchaser or the Company in recovering such sum from the third party (including any taxation payable by reason of the receipt thereof) but not in any event exceeding the amount and reasonable details originally paid to it in respect of the Claimclaim concerned.
6.6 Any amount paid by the Vendors to the Purchaser in satisfaction of any relevant claim shall be treated as a reduction by that amount in the Consideration.
6.7 Nothing contained in the Disclosure Letter shall limit and none of the limitations contained in this Clause and/or in Clauses 3 to 6 (inclusive) of the Tax Deed shall apply to any breach of any of the Warranties given in paragraphs (77), (109), (110), (111), (112), (119) and (120) of Schedule 7.
6.8 Nothing in this Agreement or the Tax Deed or otherwise shall limit the liability of any Vendor hereunder or thereunder where such Vendor has made a fraudulent, reckless or grossly negligent misrepresentation or has deliberately failed to disclose to the Purchaser information known to him.
6.9 No disclosure in the Disclosure Letter or otherwise shall limit and Clause 6.1 shall not apply to any relevant claim arising by reason of transactions effected between and/or loans, benefits and/or other distributions made or deemed for tax purposes to have been made or provided on or before Completion by or to the date being six (6) months from the date of completion and signing Company by or to all or any of the audit for Vendors or any director shareholder associate or connected person of all or any of the financial year ended 31 March 2007foregoing save that this sub-clause shall not apply to the disclosure made by reference to paragraphs 10(e), 23, 26, 27, 53, 89, 91 and 99 of Schedule 7.
(b) 6.10 The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors Purchaser shall not be entitled to recover a loss suffered by it for a breach of the Warranties to the extent that such loss is increased by:
6.10.1 any change in the law (including a change in the principles of taxation) after Completion imposing an obligation which did not exist at Completion (but not such a change which increased a liability existing at Completion) or;
6.11.2 any voluntary act or omission of the Purchaser not in the ordinary course of business where a reasonable and commercial alternative course of action is available which would not lead to such a loss and where the Purchaser had actual knowledge that the circumstances could give rise to a relevant claim;
6.11 The Purchaser acknowledges and confirms that it has formed no intention of bringing a warranty claim under the Agreement as at the date of this Agreement.
6.12 The Purchaser will disclose in writing to the Vendors such information and documents relating to claims as may be reasonably requested by the Vendors insofar as the Vendors would be entitled to receive such documents under the High Court rules of discovery if proceedings were commenced.
6.13 Nothing contained in this Agreement will be deemed to relieve the Purchaser from a common law duty to the Vendors to mitigate its loss.
6.14 The Purchaser warrants and represents to the Vendors that it has the requisite powers to enter into and perform this Agreement, and the obligations to be assumed or performed by it will constitute valid, legal and binding obligations on it.
7.1 If at any time prior to the date on which the Deferred Consideration or any part thereof is due to be paid the Purchaser has made any claim under this Agreement or the Tax Deed (a "CLAIM") and the Claim has not at the date been paid or satisfied by the Vendors in accordance with the terms of this Agreement or the Tax Deed (as appropriate) then:-
(A) if the Claim has been finally decided the Purchaser shall be entitled to deduct from any Warrantor under payment of the Warranties in respect of all such breaches more than:
(i) Deferred Consideration the amount due in respect of the Founder, a total of 1 x his compensation received from the Company in the year following CompletionClaim;
(iiB) if the amount of the Claim has not been finally decided the Purchaser shall on the due date for payment place on Cash Deposit an amount equal to the alleged amount of the Claim and such payment shall pro tanto satisfy the obligation of the Purchaser to make the relevant payment in respect of the Company, a total sum equal Deferred Consideration. The Vendors shall be entitled by notice in writing to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect Purchaser within 5 business days of the same damage suffered.
(e) The Warrantors shall banking of the Cash Deposit to notify it that they consider the amount placed on Cash Deposit to be under no liability under excessive. If within 20 business days of such notice by the Warranties in respect of any matter Vendors to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to themPurchaser, the Warrantors parties have been unable to agree the amount of the Cash Deposit, the Vendors may request the appointment of the Independent Accountant pursuant to the provisions of paragraph (other than 11) of Schedule 5 to determine a fair estimate of the Companyloss which the Purchaser is liable to suffer by reason of the alleged breach and which should be retained on the Cash Deposit. Paragraphs (10) and (12) of Schedule 5 shall have effect (so far mutatis mutandis) in relation to any appointment of the Independent Accountant pursuant to this Clause as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them do for the purpose of ascertaining Schedule 5. If the positionIndependent Accountant shall determine that the amount of the Cash Deposit exceeds a fair estimate of the loss which the Purchaser is liable to suffer, the Purchaser shall forthwith after such determination pay such excess to the Vendor's Solicitors together with any interest earned on such excess.
7.2 When any claim in respect of which a payment has been placed on Cash Deposit has been finally decided an amount of the Cash Deposit equal to the liability of the Vendors shall forthwith be paid to the Purchaser and the balance (gif any) Any shall, provided that no other Claim shall then be outstanding, be released to the Vendors' Solicitors.
7.3 For the purposes of this Clause only, a Claim shall be deemed to be withdrawn ("FINALLY DECIDED" if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.either:-
(hA) The Warrantors shall so determined by a court of competent jurisdiction from which there is no appeal or from whose judgment the Vendors or the Purchaser or relevant Company (as the case may be) do not be liable for or does not appeal within any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Planapplicable time limit; or
(iiiB) any change the Vendors and the Purchaser shall so agree in any accounting policy or practice writing.
7.4 For the purposes of this Agreement:-
(A) legal proceedings shall not be deemed to have been commenced unless they have been both issued and served on the Vendors; and
(B) neither the amount of the Company made on and/or after Cash Deposit nor the date other provisions of this Clause shall be regarded as imposing any limit on the amount of any proper claims under this Agreement or the Tax Deed.
7.5 Any release of monies from the Cash Deposit in satisfaction of any Claim shall be made first out of the principal monies forming part thereof and thereafter (to the extent such principal monies are not envisaged sufficient) out of interest earned on the principal monies. Subject to the foregoing and to the retention of any such interest on Cash Deposit on account of any Claim(s) which has or taken into have not at the relevant time been finally decided, any interest earned on principal monies released from the Cash Deposit shall be paid to the person receiving the same at the same time as they are released.
7.6 The Cash Deposit shall be an interest bearing deposit account opened at a United Kingdom branch of one of the clearing banks (or such other bank as the parties shall agree) in the preparation joint names of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
Vendors' Solicitors and the Purchaser's Solicitors on terms that no amounts (iincluding interest) shall be paid out therefrom otherwise than as expressly provided in this Clause. The Warrantors shall not be liable for any claim under the Warranties mandate applicable to the extent that Cash Deposit shall be operated jointly by the fact, matter, event or circumstance giving rise Vendors' Solicitors and Purchaser's Solicitors as provided in the Letter of Instruction in Agreed Form which the parties shall issue to such claim is remediable and is remedied by or at Solicitors on the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect making of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedCash Deposit.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (Elcom International Inc)
Limitations on Liability. The limitations set out in this clause 9.6 shall not apply Notwithstanding anything contained herein to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which contrary, liability is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantorslimited as follows:
(a1) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors OHL shall not be liable for any Claim loss or injury to Products stored, however caused, unless such loss or injury resulted from: (a) OHL’s breach of the agreement, (b) OHL’s failure to enforce Landlord’s compliance with its obligations under the Warranties to the extent that it ariseslease, (c) OHL’s negligence or is increased willful misconduct, (d) shrinkage in excess of [*]% as provided in Section 10(E)(4) below and/ or extended by:
(ie) any change to legislation, any increase in rates of taxation or any change from other products in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice Facility that cause contaminant odors with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceCLIENT’s inventory.
(i2) The Warrantors Products are not insured by OHL against loss or injury however caused [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(3) CLIENT declares that damages or loss to Product resulting from OHL’s failure to exercise reasonable care as described in (A) above are limited to CLIENT’s landed wholesale cost per unit for Product damaged up to a maximum of [*] per occurrence.
(4) CLIENT agrees to a [*]% shrink allowance, based on the value of Products stored for a period of one year for loss due to damage, mysterious disappearance or other inventory shrink. Value of the Products is determined by the number of items received per year times the average CLIENT’s paid wholesale cost per item.
(5) OHL shall not be liable for any claim under the Warranties demurrage or detention, delays in unloading inbound cars, trailers or other containers, or delays in obtaining and loading cars, trailers or other containers for outbound shipment unless OHL has failed to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantorsexercise reasonable care.
(j6) The Warrantors Neither party shall not be liable for indirect, incidental, consequential, punitive, or exemplary damages, regardless of the nature of the claim being in respect contract, tort, or otherwise, and whether in law or in equity, whether the party in breach was advised of, or otherwise should have been aware of, the possibility of such damages. The foregoing is a separate, essential term of this agreement and shall be effective even in the event of the failure of any Claim under remedy, exclusive or not. In no event, however, will the Warranties preceding exclusions on remedies apply with respect to either party’s breach of the extent that it arisesconfidentiality provisions, any indemnification obligation pursuant to Section 9 - INDEMNIFICATION AND INSURANCE, or is increased or extended by:
(i) any action or omission to take action by misappropriation of the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refusedother party’s intellectual property.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. The limitations set out liability of RM for ------------------------ indemnification hereunder shall be limited to the sum of (a) $14,883,690, plus (b) the amount of the Earn-Out Payment, if any, actually paid to the Sellers pursuant to Section 1.5 hereof, less (c) the Post-Closing Reduction, if any, actually paid to the Buyer in accordance with the U.S. Purchase Agreement (collectively, the "Indemnification Amount"); provided that the aggregate amount -------- for which RM shall be obligated to indemnify the Buyer hereunder, and for which RM Inc. shall be obligated to indemnify the Buyer under the U.S. Purchase Agreement, shall not exceed the Indemnification Amount. Notwithstanding the foregoing provisions, however, RM will have indemnification liability under this clause 9.6 Agreement only if the aggregate amount of Losses suffered by the Buyer under this Agreement and under the U.S. Purchase Agreement exceeds an amount equal to $350,000 (the "Indemnity Threshold"); provided, (A) that after the aggregate -------- amount of Losses suffered by the Buyer exceeds the Indemnity Threshold, all Losses suffered by the Buyer (including those included in reaching the Indemnity Threshold) shall be subject to RM's indemnification obligations; and (B) that such Indemnity Threshold shall not apply to a claim any Seller's breach of any of the representations and warranties set forth in Section 2. The liability of the Buyer to RM for indemnification shall be limited to the Indemnification Amount; provided that the aggregate amount for which the Buyer shall be obligated to -------- indemnify RM hereunder, and for which the Buyer shall be obligated to indemnify RM Inc. under the U.S. Purchase Agreement, shall not exceed the Indemnification Amount. The indemnification obligations of the parties set forth in this agreement against Article 10 shall be the Warrantors in exclusive remedy of the parties with respect of to claims for a breach of Warranty (a “Claim”) which is (representations or warranties hereunder or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:
(a) The rights of the Investors in respect of any Claim shall only be enforceable if the Investors give written notice failure to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable in respect of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess).
(c) Where there have been breaches of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect of the Founder, a total of 1 x his compensation received from the Company in the year following Completion;
(ii) in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter to the extent that the matter or circumstance giving rise to such liability was Disclosed.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed perform obligations required to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claimperformed hereunder.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. 3.1 The limitations set out in this clause 9.6 Sellers shall not apply be liable under the Indemnity if and to a claim under this agreement against the Warrantors in respect of a breach of Warranty (a “Claim”) which is (or extent that the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the WarrantorsEnvironmental Liabilities have been caused by:
(a) The rights any change in use of any of the Investors relevant Site from the industrial use as at the Completion Date to a non-industrial use following the Completion Date;
(b) the failure of the Group Companies to employ Reasonable Containment Measures as contemplated in clause 8.1 of this Schedule;
(c) other than the Agreed Audits, the carrying-out of any environmental investigation or audit other than any investigation or audit required under Environmental Laws or in relation to any Environmental Proceeding or in accordance with good business practices;
(d) any material change of Environmental Laws following the Completion Date resulting in (i) a requirement for additional Remedial Action and/or Reasonable Containment Measures, or (ii) more stringent requirements for any Remedial Action and/or Reasonable Containment Measures; and
(e) information voluntarily given to a regulatory authority in circumstances other than where there is a reporting requirement under Environmental Laws (including, for the avoidance of doubt, any legally required disclosure of any of the Agreed Audits to any regulatory authority) or under any environmental permit (including, for the avoidance of doubt, an obligation to disclose any of the Agreed Audits to any regulatory authority) or where the Sellers have previously proposed or approved this course of action in writing.
3.2 The Sellers shall cease to be liable for any claim under this Indemnity on 1 April 2014, except in respect of any Claim shall only be enforceable if the Investors give written notice valid bona fide claim that has been notified in writing prior to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007.
(b) The Warrantors shall not be liable that date, in respect of any Claim under which the Warranties unless Indemnity shall survive until such time as the total cumulative liability of the Warrantors in respect of all such Claims exceeds £25,000 (in which event the Warrantors shall be liable for the whole of such liability and not merely for the excess)claim is either satisfied or otherwise settled, or dismissed, abandoned or withdrawn.
(c) Where there have been breaches of the Warranties then the Investors 3.3 The Purchaser shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
Environmental Liabilities (i) in respect of to the Founder, a total of 1 x his compensation received from the Company extent that provision has been made in the year following Completion;
Accounts for the matter which has given rise to, or is giving rise to, such Environmental Liabilities, (ii) in respect of the Company, a total sum equal any Reasonable Containment Measures that were already being implemented prior to the aggregate Preference Issue Price paid for the Investor Shares.
Accounts Date, or (diii) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors shall be under no liability under the Warranties in respect of any matter Reasonable Containment Measures that after the Completion Date supersede containment measures that were already being implemented prior to the Accounts Date, save to the extent that the matter or circumstance giving rise to cost of such liability was DisclosedReasonable Containment Measures is higher than the cost of the superseded containment measures as reflected in the Accounts (in both cases as calculated on an annual basis).
(f) If any Claim against 3.4 For the Warrantors is notified to themavoidance of doubt, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies provisions of them for the purpose paragraph 3 of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfiedSchedule 8 and, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arisesapplicable in accordance with the terms thereof, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date clause 11 of the Company made on and/or after the date of this Agreement shall apply to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practiceIndemnity.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Sale and Purchase Agreement (WireCo WorldGroup Inc.)
Limitations on Liability. The limitations set out (a) Notwithstanding the foregoing:
(i) solely with respect to any breach or inaccuracy of a representation or warranty made by Seller in this clause 9.6 ARTICLE III (other than the Fundamental Representations), (x) Seller shall not apply be obligated to indemnify Buyer Indemnified Parties pursuant to Section 8.2(i) unless and until the amount of all Losses incurred by Buyer exceeds 5% of the Base Price in the aggregate, in which event the Buyer Indemnified Parties may recover Losses incurred in excess of such amount from the first dollar above such amount, and (y) Seller’s maximum liability for Losses under Section 8.2(i) shall be 15% of the Base Price;
(ii) solely with respect to any breach or inaccuracy of a claim under this agreement against representation or warranty made by Seller in Section 3.6(a), Seller shall not be obligated to indemnify Buyer Indemnified Parties pursuant to Section 8.2(i) unless and until the Warrantors amount of all Losses incurred by Buyer in respect of a breach such breaches exceeds $5,000,000 in the aggregate, in which event the Buyer Indemnified Parties may recover Losses incurred from the first dollar of Warranty (a “Claim”) which is (or the delay in discovery of which is) the consequence of fraud, or dishonesty on the part of the Warrantors:such Losses; and
(aiii) The rights of the Investors in no event shall Seller’s aggregate liability for Losses under Section 8.2(i) in respect of any Claim shall only be enforceable if breaches or inaccuracies of Fundamental Representations exceed the Investors give written notice to the Warrantors (giving so far as practicable the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Final Purchase Price.
(b) The Warrantors shall not be liable in respect Solely for the purposes of determining whether any breach or inaccuracy of a representation or warranty by a party has occurred or the amount of Losses resulting from or arising out of any Claim breach or inaccuracy of any representations or warranties of either party in connection with the assertion of an indemnification claim under the Warranties unless the total cumulative liability of the Warrantors in respect of all this Article VIII, such Claims exceeds £25,000 (in which event the Warrantors determination shall be liable for made without regard to any qualifier as to “material,” “materiality” or “Material Adverse Effect” as expressly contained in such representations and warranties (other than the whole of such liability representations and not merely for the excesswarranties set forth in Section 3.12).
(c) Where there have In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been breaches of the Warranties then the Investors made under any other representation, warranty, covenant, or agreement and shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
computed net of: (i) payments recovered by the Indemnified Party under any insurance policy with respect to such Losses (net of any increase in respect of the Founder, a total of 1 x his compensation received premium resulting from the Company in the year following Completion;
coverage for such Loss); (ii) in any prior or subsequent recovery actually received by the Indemnified Party from any Person with respect of to such Losses (including pursuant to any indemnification agreement or arrangement with any third party); and (iii) any Tax benefit realized by the Company, a total sum equal Indemnified Party with respect to the aggregate Preference Issue Price paid for the Investor Sharessuch Losses.
(d) The Investors In respect of any Loss for which indemnification may be sought pursuant to ARTICLE VIII, the Indemnified Party shall (and shall cause its Affiliates to) (i) use commercially reasonable efforts to mitigate any Losses upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto, and (ii) use commercially reasonable efforts to pursue all legal rights and remedies available (including insurance recoveries and third party indemnification) in order to minimize the Losses to which it may be entitled to indemnification under this Agreement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not be entitled required to recover from the Warrantors under the Warranties more than once make any payment to an Indemnified Party in respect of such Loss to the same damage sufferedextent such Indemnified Party has failed to comply with its obligations under this Section 8.5(d).
(e) The Warrantors shall be under no liability under To the Warranties extent that Seller makes any payment pursuant to this ARTICLE VIII in respect of Losses for which Buyer or any matter of its Affiliates have a right to recover against a third party (including an insurance company), Seller shall be subrogated to the extent right of Buyer or any of its Affiliates to seek and obtain recovery from such third party; provided, however, that the matter if Seller shall be prohibited from such subrogation, Buyer or circumstance giving rise its Affiliates, as applicable, shall seek recovery from such third party on Seller’s behalf and pay any such recovery to such liability was DisclosedSeller.
(f) If The parties agree that except for (A) the indemnities provided for in Section 5.15, Section 5.17 and Section 5.21 (B) any Claim against remedy for Losses that Indemnified Parties may have to the Warrantors is notified extent arising out of fraud, (C) any claims seeking an injunction, specific performance or other equitable relief, from and after the Closing and (D) any remedy for Losses that are provided pursuant to themany Ancillary Agreement the remedies provided in this ARTICLE VIII shall be deemed the sole and exclusive remedies of the parties, from and after the Warrantors (Closing Date, with respect to this Agreement and the transactions contemplated hereby and each Indemnified Party expressly waives and relinquishes, on behalf of itself, its successors and any assigns, any and all rights, claims or remedies such Person may have other than under this ARTICLE VIII against any Indemnifying Party or any Affiliate thereof (and any of their respective Representatives), any statutory, equitable, or common law rights or remedies relating to any environmental matters. Without limiting the Company) generality of the foregoing, in no event shall (so far as they are able) afford and procure that any party, its successors or permitted assigns be entitled to claim or seek rescission of the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the positiontransactions contemplated by this Agreement.
(g) Any Claim Seller shall be deemed have no obligation to be withdrawn (if it has not been previously satisfiedindemnify, settled defend and save Buyer or withdrawn) unless legal proceedings any of its Affiliates from Losses for environmental contamination matters where the environmental contamination giving rise to such Losses is discovered as a result of Buyer or any of its Affiliates conducting or arranging to conduct sampling and analysis of soil, sediment, surface water or groundwater monitoring ▇▇▇▇▇, or the removal of UST, in respect thereof have been commenced within nine months each case at any Business Real Property after the Closing Date, and outside the Ordinary Course of the giving of written notice of the ClaimBusiness.
(h) The Warrantors amount of any Losses to which an Indemnified Party is entitled to be indemnified with respect to any claim shall not be liable calculated net of any adjustment to the Initial Purchase Price made pursuant to Section 2.4 hereof and for any Claim under the Warranties to the extent that it arisesaccruals, reserves or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change provisions therefor reflected in the published practice of a revenue authorityFinal Closing Adjustment or the Financial Statements, without limiting the foregoing, an Indemnifying Party shall have no obligation to indemnify any Indemnified Party with respect to any breach or inaccuracy in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date representations, warranties, covenants or agreements of an Indemnifying Party under this Agreement to the extent not envisaged or taken into account the Initial Purchase Price has been adjusted in the preparation respect of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practicesubject matter thereof.
(i) The Warrantors Notwithstanding anything to the contrary in ARTICLE VIII, “Losses” shall not be liable include liability for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) punitive damages of any kind or nature, regardless of the form of action through which damages are sought or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) consequential damages or lost profits (including, loss of profit or revenue, any action multiple of reduced cash flow or omission any adjustments based on price to take action where consent earnings or agreement to take similar ratios), interference with operations, or omit to take such action was required under loss of customers, tenants, lenders, investors or buyers or diminution in the terms value of this Agreement property, unless, in each case of subsections (i) and requested from the Investors and/or (ii) above, actually awarded by a BVP Director but refusedGovernmental Entity in a Third Party Claim.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Limitations on Liability. (a) No Seller shall be liable for indemnification pursuant to Section 9.2(a) or Section 9.2(g) unless and until the aggregate amount of Losses incurred by Buyer Indemnified Parties as a result of all such misrepresentations and breaches of warranty under this Agreement exceeds $800,000 (the “Basket Amount”), in which case Sellers shall be liable for the amount of all such Losses incurred by Buyer Indemnified Parties, in excess of the Basket Amount. The limitations set out in this clause 9.6 maximum aggregate liability for Losses recoverable by Buyer Indemnified Parties pursuant to Section 9.2(a), Section 9.2(f) and Section 9.2(g) shall not apply exceed the Cap, and the maximum aggregate liability for Losses recoverable by Buyer Indemnified Parties pursuant to a claim under this agreement against Section 9.2(g) shall not exceed 75% of the Warrantors in respect actual Losses by such Buyer Indemnified Parties; provided, however, that Losses incurred by Buyer Indemnified Parties for any breach of a breach Seller Excepted Matter or in the event of Warranty (a “Claim”) which is (willful misconduct, intentional misrepresentation or the delay in discovery of which is) the consequence of fraud, or dishonesty fraud on the part of the Warrantors:
(a) The rights of the Investors in respect of Company or any Claim Seller, shall only not be enforceable if the Investors give written notice subject to the Warrantors (giving so far as practicable Basket Amount or the amount and reasonable details of the Claim) on or before the date being six (6) months from the date of completion and signing of the audit for the financial year ended 31 March 2007Cap.
(b) The Warrantors Buyer shall not be liable in respect for indemnification pursuant to Section 9.3(a) unless and until the aggregate amount of any Claim under the Warranties unless the total cumulative liability of the Warrantors in respect Losses incurred by Seller Indemnified Parties as a result of all such Claims misrepresentations and breaches of warranty under this Agreement exceeds £25,000 (the Basket Amount, in which event the Warrantors case Buyer shall be liable for the whole amount of all such Losses incurred by Seller Indemnified Parties in excess of the Basket Amount. The maximum aggregate liability and for Losses recoverable by Seller Indemnified Parties pursuant to Section 9.3(a) shall not merely exceed the Cap; provided, however, that Losses incurred by Seller Indemnified Parties for breach of a Buyer Excepted Matter or in the excess)event of willful misconduct, intentional misrepresentation or fraud on the part of Buyer, shall not be subject to the Basket Amount or the Cap.
(c) Where there have been breaches For purposes of the Warranties then the Investors shall not be entitled to recover from any Warrantor under the Warranties in respect of all such breaches more than:
(i) in respect determining whether there has been any breach of the Founderany representation or warranty made by Buyer or Sellers for purposes of this Section 9, a total of 1 x his compensation received from the Company in the year following Completion;
and (ii) calculating Losses hereunder, each representation and warranty contained in respect of the Company, a total sum equal to the aggregate Preference Issue Price paid for the Investor Shares.
(d) The Investors shall not be entitled to recover from the Warrantors under the Warranties more than once in respect of the same damage suffered.
(e) The Warrantors this Agreement shall be under no liability under the Warranties read without regard and without giving effect to any materiality, Material Adverse Effect, “material” or other similar qualification contained in respect of any matter to the extent that the matter such representation or circumstance giving rise to such liability was Disclosedwarranty.
(f) If any Claim against the Warrantors is notified to them, the Warrantors (other than the Company) shall (so far as they are able) afford and procure that the Company affords to the Investors and their advisers all reasonable opportunities and facilities to inspect all relevant books and records and to take copies of them for the purpose of ascertaining the position.
(g) Any Claim shall be deemed to be withdrawn (if it has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect thereof have been commenced within nine months of the giving of written notice of the Claim.
(h) The Warrantors shall not be liable for any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any change to legislation, any increase in rates of taxation or any change in the published practice of a revenue authority, in each case made on and/or after the date of this Agreement and not publicly known at the date of this Agreement;
(ii) any change in the accounting reference date of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan; or
(iii) any change in any accounting policy or practice of the Company made on and/or after the date of this Agreement to the extent not envisaged or taken into account in the preparation of the Business Plan save where such change is required to conform such policy or practice with generally accepted policies or practices or where such change is necessary to correct an improper policy or practice.
(i) The Warrantors shall not be liable for any claim under the Warranties to the extent that the fact, matter, event or circumstance giving rise to such claim is remediable and is remedied by or at the expense of the Warrantors within thirty days of the date on which written notice of such claim is given to the Warrantors.
(j) The Warrantors shall not be liable in respect of any Claim under the Warranties to the extent that it arises, or is increased or extended by:
(i) any action or omission to take action by the Company or one of its subsidiaries taken at the express and written request of an Investor Majority or with the consent of an Investor Majority;
(ii) any action or omission to take action where consent or agreement to take or omit to take such action was required under the terms of this Agreement and requested from the Investors and/or a BVP Director but refused.
(k) If any claim under the Warranties shall arise by reason of some liability which at the time that the claim is notified to the Warrantors shall be contingent only, then the Warrantors shall not be under any obligation to make payment in respect thereof until such time as such contingent liability ceases to be contingent and becomes an actual liability.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (RCS Capital Corp)