Specific Indemnification. (a) Notwithstanding anything to the contrary provided in this Agreement, the Indemnifying Party shall fully indemnify and hold harmless the Indemnifiable Party from and against all losses, claims, damages, interests, costs, fines, penalties or reasonable expenses (and in the case of the Tax Indemnity and the indemnity under Section 11.6(a)(iv), the Tax itself) whatsoever actually suffered or incurred: (i) as a result of any Environmental Claim or failure by the Group Companies to comply with applicable Environmental Laws (but in this latter case to the sole extent of such non-compliance) or otherwise as a result of a breach of the Environmental Warranties (the “Environmental Indemnity” “ and any loss suffered in this connection an “Environmental Loss"); or (ii) in connection with or as a result of: (A) any Taxes which may be imposed on or otherwise due by, MIF or M▇▇▇▇ International Holding Sarl (Luxembourg) (including as a result of the Luxembourg Reorganisation) for taxable periods (or portions thereof) ending on or before Closing (subject always to any Tax assessments that relate to transactions that are correctly Taxable on or before Closing; provided, that for this purpose, correctly shall mean consistent with the Law and statements of practice, written interpretations, bulletins and press releases made by or on behalf of the relevant Tax authorities); and provided always that if a Luxembourg authority (including, but not limited to, judicial, governmental or registration authorities) successfully asserts that either MIF or M▇▇▇▇ International Holdings Sarl (the “Luxembourg Entities”) was not a valid legal entity under Luxembourg law for any time up to and including Closing, such that either or both Luxembourg Entities (or the partners thereof) are required to take any particular action that has the effect of crystallising a Tax charge after Closing (for example, but not limited to liquidation), then the Indemnifying Party shall fully indemnify the Indemnifiable Party; and provided always that if the Luxembourg Tax authorities successfully assert that either or both of the Luxembourg Entities were not managed for any time on or before Closing in accordance with the Tax rulings applying to them, with the result that the Tax-transparent status of MIF in Luxembourg does not apply after Closing and in consequence a Tax charge arises after Closing, then the Indemnifying Party shall fully indemnify the Indemnifiable Party; or (B) any Taxes on net profit (including income and gains) which may be imposed on or otherwise due by any of the Group Companies for taxable periods (or portions thereof) ending on or before the Closing Date (subject always to any Tax assessments that relate to transactions that are correctly Taxable on or before Closing; provided, that for this purpose, correctly shall mean consistent with the Law and statements of practice, written interpretations, bulletins and press releases made by or on behalf of the relevant Tax authorities); in both cases of (A) and (B) after taking into account all available Tax loss carry forwards and other Tax attributes, but only to the extent that those Tax loss carry forwards and other Tax attributes are not being utilized against any other liability up to and including Closing (together, the “Tax Indemnity”). (iii) in connection with or as a result of: (A) any liability for the Indemnifiable Party or the Group Companies resulting from the shareholding held in the Investment Participations; (B) any obligation whatsoever for the Group Companies to pay any amount in connection with their past shareholding in Allibert T&L GmbH (Austria), Raaco Sweden AB (Sweden) and SCI de la Plaine (France), all of which have been liquidated prior to the Execution Date; (C) the following disputes, should any of them result in a Loss for the Group Companies in excess of the amount set out in Section 11.2(a)(i): I. dispute between Allibert Buckhorn France and RS Diffusion as distributor for improper breach of contract (amount claimed € 1,926,000); II. dispute relating to the alleged infringement of the German utility model DE 299 11 098 by the Raacofix system; III. dispute between ABUK and B&Q plc relating to quality problems on Buckhorn bulk boxes; (D) any claim of a client or supplier of Allibert Buckhorn France in relation to the Discontinuation of ABF French Waste Management Trading Activity; (E) costs incurred by the Purchaser or the Group Companies in connection with formalities carried out after the Closing Date to ensure that all of the Group Companies IPR are properly registered in the name of the relevant Group Company owning such right (and that the Group Companies are in a position to enforce such rights against third parties), it being specifically agreed, that the Seller’s undertakings under this specific indemnity shall terminate on the first anniversary of the Closing Date; it being further agreed that the Seller undertakes to provide the Purchaser with all documents in its possession and necessary to carry out these formalities; (F) the cancellation of stock-options granted by the Seller (or any Affiliate) to Group Companies’ employees; (G) the failure for the Group Companies to hold at Closing any of the documents referred to in Section 12.12(l); and (H) the Luxembourg Reorganization; (together, the “Miscellaneous Indemnity”). in all cases of the Environmental Indemnity, the Tax Indemnity and the Miscellaneous Indemnity to the extent deriving from the facts or circumstances occurring on or before the Closing Date (subject to Section 13.6) even if the related loss arose after such date. (iv) in connection with or as a result of Closing occurring following the waiver by the Purchaser of the Condition to Closing set out in Section 5.1(a)(ii)(C) or the Seller’s obligations in Section 12.7, such indemnity being limited only to all Tax, losses, claims, damages, interests, costs, fines, penalties or reasonable expenses arising from the non-continuation of the Tax transparent status of MIF or any part of the Luxembourg Reorganization and only to the extent incurred during the 12-month period commencing on the Closing Date (and notwithstanding any act or omission to act by the Purchaser or any of the Group Companies after the Closing Date). As soon as practicable, during this 12-month period (and without prejudice to the above indemnity), the Purchaser shall use best efforts to procure the liquidation of MIF. (v) provided that Section 12.12(1) has not been complied with in connection with or as a result of the failure (including past failure) for agreements entered into by any Group Company with any sales agents operating in Italy to comply with applicable Law, such indemnity being limited to all losses, claims, damages, interests, costs, fines, penalties or reasonable expenses incurred by the Indemnifiable Party or any Group Company during the 12-month period commencing on the Closing Date:
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Specific Indemnification. Transferee hereby acknowledges that (ai) Transferee is aware of a lawsuit styled ▇▇▇▇ ▇▇▇▇▇▇▇▇, et al, Plaintiffs, vs. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, and Sydney ▇. ▇▇▇▇▇▇, d/b/a ▇▇▇▇▇▇ ▇▇▇▇▇▇, Defendants, which is now pending in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida, as Case No 95-19477 CA 15 (the "MOLD LITIGATION"), and (ii) Transferee will have an adequate opportunity to make such legal, factual and other inquiries and investigations as Transferee deems necessary, desirable and appropriate with respect to the Mold Litigation, including, without limitation, the issues raised therein and the potential for future expenses as a result of the facts thereof. Notwithstanding anything to the contrary provided in contained herein, this AgreementSection 14.2 is intended to be the only provision of this Agreement that governs the parties' indemnification rights and obligations with respect to the Mold Litigation and any mold and mildew on the Property. Transferor shall indemnify, the Indemnifying Party shall fully indemnify defend and hold Transferee harmless the Indemnifiable Party from and against all losses, claims, damages, interests, costs, fines, penalties any Claims arising out of or reasonable expenses (and in the case of the Tax Indemnity and the indemnity under Section 11.6(a)(iv), the Tax itself) whatsoever actually suffered or incurred:
(i) as a result of any Environmental Claim or failure by the Group Companies to comply with applicable Environmental Laws (but in this latter case to the sole extent of such non-compliance) or otherwise as a result of a breach of the Environmental Warranties (the “Environmental Indemnity” “ and any loss suffered in this connection an “Environmental Loss"); or
(ii) in connection with or as a result of:
(A) any Taxes which may be imposed on or otherwise due by, MIF or M▇▇▇▇ International Holding Sarl (Luxembourg) (including as a result of the Luxembourg Reorganisation) for taxable periods (or portions thereof) ending on or before Closing (subject always to any Tax assessments that relate to transactions that are correctly Taxable on or before Closing; provided, that for this purpose, correctly shall mean consistent with the Law and statements of practice, written interpretations, bulletins and press releases made by or on behalf of the relevant Tax authorities); and provided always that if a Luxembourg authority (including, but not limited to, judicial, governmental or registration authorities) successfully asserts that either MIF or M▇▇▇▇ International Holdings Sarl (the “Luxembourg Entities”) was not a valid legal entity under Luxembourg law for any time up to and including Closing, such that either or both Luxembourg Entities (or the partners thereof) are required to take any particular action that has the effect of crystallising a Tax charge after Closing (for example, but not limited to liquidation), then the Indemnifying Party shall fully indemnify the Indemnifiable Party; and provided always that if the Luxembourg Tax authorities successfully assert that either or both of the Luxembourg Entities were not managed for any time on or before Closing in accordance with the Tax rulings applying to them, with the result that the Tax-transparent status of MIF in Luxembourg does not apply after Closing and in consequence a Tax charge arises after Closing, then the Indemnifying Party shall fully indemnify the Indemnifiable Party; or
(B) any Taxes on net profit (including income and gains) which may be imposed on or otherwise due by any of the Group Companies for taxable periods (or portions thereof) ending on or before the Closing Date (subject always to any Tax assessments that relate to transactions that are correctly Taxable on or before Closing; provided, that for this purpose, correctly shall mean consistent with the Law and statements of practice, written interpretations, bulletins and press releases made by or on behalf of the relevant Tax authorities); in both cases of (A) and (B) after taking into account all available Tax loss carry forwards and other Tax attributesMold Litigation, but only to the extent that those Tax loss carry forwards and other Tax attributes are not being utilized against any other liability up to and including Closing (together, the “Tax Indemnity”).
(iii) in connection with or as a result of:
(A) any liability for damage which is the Indemnifiable Party or the Group Companies resulting from the shareholding held in the Investment Participations;
(B) any obligation whatsoever for the Group Companies to pay any amount in connection with their past shareholding in Allibert T&L GmbH (Austria), Raaco Sweden AB (Sweden) and SCI de la Plaine (France), all subject of which have been liquidated such Claims occurred prior to the Execution Date;
(C) the following disputesClosing; provided, should any of them result in a Loss for the Group Companies in excess of the amount set out in Section 11.2(a)(i):
I. dispute between Allibert Buckhorn France and RS Diffusion as distributor for improper breach of contract (amount claimed € 1,926,000);
II. dispute relating to the alleged infringement of the German utility model DE 299 11 098 by the Raacofix system;
III. dispute between ABUK and B&Q plc relating to quality problems on Buckhorn bulk boxes;
(D) any claim of a client or supplier of Allibert Buckhorn France in relation to the Discontinuation of ABF French Waste Management Trading Activity;
(E) costs incurred by the Purchaser or the Group Companies in connection with formalities carried out after the Closing Date to ensure that all of the Group Companies IPR are properly registered in the name of the relevant Group Company owning such right (and that the Group Companies are in a position to enforce such rights against third parties), it being specifically agreedhowever, that the Seller’s undertakings under parties hereby acknowledge and agree that this specific indemnity indemnification shall terminate not apply to any Claims relating to any mold or mildew on the first anniversary of the Closing Date; it being further agreed that the Seller undertakes to provide the Purchaser with all documents in its possession and necessary to carry out these formalities;
(F) the cancellation of stock-options granted by the Seller (or any Affiliate) to Group Companies’ employees;
(G) the failure for the Group Companies to hold at Closing any of the documents referred to in Section 12.12(l); and
(H) the Luxembourg Reorganization; (together, the “Miscellaneous Indemnity”). in all cases of the Environmental Indemnity, the Tax Indemnity and the Miscellaneous Indemnity to the extent deriving from the facts or circumstances occurring on or before the Closing Date (subject to Section 13.6) even if the related loss arose after such date.
(iv) in connection with or as a result of Closing occurring following the waiver by the Purchaser of the Condition to Closing set out in Section 5.1(a)(ii)(C) or the Seller’s obligations in Section 12.7, such indemnity being limited only to all Tax, losses, claims, damages, interests, costs, fines, penalties or reasonable expenses Property other than Claims arising from the non-continuation of the Tax transparent status of MIF or any part of the Luxembourg Reorganization Mold Litigation and then only to the extent incurred during that the 12-month period commencing on damage which is the Closing Date (and notwithstanding any act or omission to act by the Purchaser or any subject of the Group Companies after the Closing Date). As soon as practicable, during this 12-month period (and without prejudice such Claims occurred prior to the above indemnity)Closing. Transferee shall indemnify, the Purchaser shall use best efforts to procure the liquidation defend and hold Transferor harmless from and against any Claims arising out of MIF.
(v) provided that Section 12.12(1) has not been complied with or in connection with the Mold Litigation and any mold or as mildew on the Property to the extent that the damage which is the subject of such Claims occurred after the Closing. In the event that a result Claim involves damage suffered both before and after Closing, then Transferor and Transferee agree to use reasonable, good faith efforts to apportion such Claim among themselves. To the extent that Transferee and Transferor cannot agree upon apportionment, then the matter shall be submitted exclusively to binding arbitration in accordance with the rules then in effect of the failure (including past failure) for agreements American Arbitration Association, and a judgment upon the award rendered may be entered into by in any Group Company with any sales agents operating in Italy to comply with applicable Law, such indemnity being limited to all losses, claims, damages, interests, costs, fines, penalties or reasonable expenses incurred by the Indemnifiable Party or any Group Company during the 12-month period commencing on the Closing Date:court having jurisdiction thereof.
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Sources: Acquisition and Contribution Agreement (Apartment Investment & Management Co)
Specific Indemnification. (a) Notwithstanding anything to the contrary provided in this Agreement, the Indemnifying Party shall fully indemnify and hold harmless the Indemnifiable Party from and against all losses, claims, damages, interests, costs, fines, penalties or reasonable expenses (and in the case of the Tax Indemnity and the indemnity under Section 11.6(a)(iv), the Tax itself) whatsoever actually suffered or incurred:
(i) as a result of any Environmental Claim or failure by the Group Companies to comply with applicable Environmental Laws (but in this latter case to the sole extent of such non-compliance) or otherwise as a result of a breach of the Environmental Warranties (the “"Environmental Indemnity” “ " " and any loss suffered in this connection an “"Environmental Loss"); or
(ii) in connection with or as a result of:
(A) any Taxes which may be imposed on or otherwise due by, MIF or M▇My▇▇▇ International ▇nternational Holding Sarl (Luxembourg) (including as a result of the Luxembourg Reorganisation) for taxable periods (or portions thereof) ending on or before Closing (subject always to any Tax assessments that relate to transactions that are correctly Taxable on or before Closing; provided, that for this purpose, correctly shall mean consistent with the Law and statements of practice, written interpretations, bulletins and press releases made by or on behalf of the relevant Tax authorities); and provided always that if a Luxembourg authority (including, but not limited to, judicial, governmental or registration authorities) successfully asserts that either MIF or M▇My▇▇▇ International ▇nternational Holdings Sarl (the “"Luxembourg Entities”") was not a valid legal entity under Luxembourg law for any time up to and including Closing, such that either or both Luxembourg Entities (or the partners thereof) are required to take any particular action that has the effect of crystallising a Tax charge after Closing (for example, but not limited to liquidation), then the Indemnifying Party shall fully indemnify the Indemnifiable Party; and provided always that if the Luxembourg Tax authorities successfully assert that either or both of the Luxembourg Entities were not managed for any time on or before Closing in accordance with the Tax rulings applying to them, with the result that the Tax-transparent status of MIF in Luxembourg does not apply after Closing and in consequence a Tax charge arises after Closing, then the Indemnifying Party shall fully indemnify the Indemnifiable Party; or
(B) any Taxes on net profit (including income and gains) which may be imposed on or otherwise due by any of the Group Companies for taxable periods (or portions thereof) ending on or before the Closing Date (subject always to any Tax assessments that relate to transactions that are correctly Taxable on or before Closing; provided, that for this purpose, correctly shall mean consistent with the Law and statements of practice, written interpretations, bulletins and press releases made by or on behalf of the relevant Tax authorities); in both cases of (A) and (B) after taking into account all available Tax loss carry forwards and other Tax attributes, but only to the extent that those Tax loss carry forwards and other Tax attributes are not being utilized against any other liability up to and including Closing (together, the “"Tax Indemnity”").
(iii) in connection with or as a result of:
(A) any liability for the Indemnifiable Party or the Group Companies resulting from the shareholding held in the Investment Participations;
(B) any obligation whatsoever for the Group Companies to pay any amount in connection with their past shareholding in Allibert T&L GmbH (Austria), Raaco Sweden AB (Sweden) and SCI de la Plaine (France), all of which have been liquidated prior to the Execution Date;
(C) the following disputes, should any of them result in a Loss for the Group Companies in excess of the amount set out in Section 11.2(a)(i):
): I. dispute between Allibert Buckhorn France and RS Diffusion as distributor for improper breach of contract (amount claimed € 1,926,0001,926,000 euros);
II. dispute relating to the alleged infringement of the German utility model DE 299 11 098 by the Raacofix system;
III. dispute between ABUK and B&Q plc relating to quality problems on Buckhorn bulk boxes;
(D) any claim of a client or supplier of Allibert Buckhorn France in relation to the Discontinuation of ABF French Waste Management Trading Activity;
(E) costs incurred by the Purchaser or the Group Companies in connection with formalities carried out after the Closing Date to ensure that all of the Group Companies IPR are properly registered in the name of the relevant Group Company owning such right (and that the Group Companies are in a position to enforce such rights against third parties), it being specifically agreed, that the Seller’s undertakings under this specific indemnity shall terminate on the first anniversary of the Closing Date; it being further agreed that the Seller undertakes to provide the Purchaser with all documents in its possession and necessary to carry out these formalities;
(F) the cancellation of stock-options granted by the Seller (or any Affiliate) to Group Companies’ employees;
(G) the failure for the Group Companies to hold at Closing any of the documents referred to in Section 12.12(l); and
(H) the Luxembourg Reorganization; (together, the “Miscellaneous Indemnity”). in all cases of the Environmental Indemnity, the Tax Indemnity and the Miscellaneous Indemnity to the extent deriving from the facts or circumstances occurring on or before the Closing Date (subject to Section 13.6) even if the related loss arose after such date.
(iv) in connection with or as a result of Closing occurring following the waiver by the Purchaser of the Condition to Closing set out in Section 5.1(a)(ii)(C) or the Seller’s obligations in Section 12.7, such indemnity being limited only to all Tax, losses, claims, damages, interests, costs, fines, penalties or reasonable expenses arising from the non-continuation of the Tax transparent status of MIF or any part of the Luxembourg Reorganization and only to the extent incurred during the 12-month period commencing on the Closing Date (and notwithstanding any act or omission to act by the Purchaser or any of the Group Companies after the Closing Date). As soon as practicable, during this 12-month period (and without prejudice to the above indemnity), the Purchaser shall use best efforts to procure the liquidation of MIF.
(v) provided that Section 12.12(1) has not been complied with in connection with or as a result of the failure (including past failure) for agreements entered into by any Group Company with any sales agents operating in Italy to comply with applicable Law, such indemnity being limited to all losses, claims, damages, interests, costs, fines, penalties or reasonable expenses incurred by the Indemnifiable Party or any Group Company during the 12-month period commencing on the Closing Date:
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