Survival; Limitations. (a) The representations and warranties of the parties contained in or made pursuant to this Agreement shall be deemed to have been made on the date hereof and on the Closing Date, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending May 7, 2008 (the “Survival Period”); provided that if on or prior to the expiration of the Survival Period, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereof, the indemnified party shall continue to have the right to be indemnified with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the representations and warranties contained in Section 3.17 (‘Environmental Matters’), 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) shall survive until the expiration of the applicable statute of limitations period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Sellers’ Authority’), 3.16 (‘Brokers’) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made by any party hereunder which are to be performed after the Closing Date shall survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification with respect to the underlying representation and warranty remains available in accordance with the foregoing provisions of this Section 9.1(a) (including as extended pursuant to the first proviso hereof). (b) Except for any Loss and Expense suffered by Buyer based on the breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers, Buyer shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) of this Agreement exceeds $100,000 (the “Threshold”). Once the Threshold has been reached, Buyer shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below for the aggregate amount of Loss and Expense suffered by Buyer, including any and all claims which individually or in the aggregate did not reach the Threshold. Notwithstanding the foregoing, the Threshold shall not apply to any adjustments under Section 1.6, any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’) or Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date. (c) Sellers’ maximum aggregate liability to Buyer for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss and Expense shall be $7.7 million (the “Cap”); provided that the Cap shall not apply to any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) or resulting from fraud or willful misconduct by Sellers or any covenants and agreements made by any party hereto which are to be performed after the Closing Date. Except with regard to compensation for claims paid to third parties, no indemnifying party shall have any liability to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits. (d) Except for equitable remedies (including, without limitation, injunctive relief) and in the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of Buyer and Seller, as the case may be, from and after the Closing Date with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under this Agreement or any of the transactions contemplated hereby shall be solely in accordance with, and limited by, the indemnification provisions set forth in this Article IX.
Appears in 2 contracts
Sources: Asset Purchase Agreement (GateHouse Media, Inc.), Asset Purchase Agreement (Champion Industries Inc)
Survival; Limitations. (a) The representations and warranties of the parties Sellers, Holdco and the Buyer contained in or made pursuant to this Agreement shall be deemed to have been made will survive for a period ending on the date hereof and on the Closing Date, shall survive 12-month anniversary of the Closing Date and shall remain operative and in full force and effect for the period ending May 7, 2008 (the “Survival PeriodExpiration Date”); provided provided, however, that if on or prior (i) the Expiration Date for any Claim relating to the expiration a breach of the Survival Period, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereof, the indemnified party shall continue to have the right to be indemnified with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the representations and warranties contained set forth in Section 3.17 5.8 (‘Environmental Matters’), 3.18 (‘Circulation’Taxes) and Section 3.20 (‘Taxes’) shall survive until will be the expiration of the applicable statute of limitations period plus 90 days limitations; (ii) the Expiration Date for any Claim relating to a breach of the representations and warranties set forth in Article IV, Section 5.1 (Existence and Good Standing), Section 5.2 (Validity 42 and Enforceability), Section 5.3 (Capitalization of Holdco and Enginetics) and Section 5.22 (Brokers) (the “Excluded Representations”) and the representations and warranties in Section 5.15 (Compliance with Laws) as they relate to the Foreign Corrupt Practices Act and in Section 5.19 (Environmental) will be the third anniversary of the Closing Date and (iii) any Claim pending on any Expiration Date for which a Claims Notice has been given in accordance with Section 10.4(a) on or before such Expiration Date may continue to be asserted and indemnified against until finally resolved. The covenants of the Sellers and the Buyer contained in Sections 3.2 (‘Sellers’ Authority’), 3.16 (‘Brokers’) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made by any party hereunder which this Agreement that are to be performed prior to the Closing will terminate on the 12-month anniversary of the Closing Date; provided, however, that the covenants of the Sellers and the Buyer contained in this Agreement that are to be performed at or after the Closing Date shall will survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification with respect to the underlying representation and warranty remains available Closing in accordance with the foregoing provisions of this Section 9.1(a) (including as extended pursuant to the first proviso hereof)their terms.
(b) Except for any Loss and Expense suffered by Buyer based on Notwithstanding anything to the breach of any representation or warranty contrary contained in Section 3.17 (‘Environmental Matters’)this Article X, Section 3.18 (‘Circulation’the Sellers will not have any liability pursuant to Sections 10.2(a) and Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers, the Buyer shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) of this Agreement exceeds $100,000 (the “Threshold”). Once the Threshold has been reached, Buyer shall be entitled to full indemnification from Sellers have liability pursuant to Section 9.2(a) below for 10.1 until the aggregate amount of Loss and Expense suffered all such Losses sustained by Buyerthe Indemnified Party (defined below) exceeds an amount equal to $350,000 (the “Deductible”), including in which case the Indemnifying Party will be liable for all such Losses to the extent that such Losses exceed such amount, subject to any and all claims which individually or other limitations in this Section 10.3. For the aggregate did not reach the Threshold. Notwithstanding the foregoingavoidance of doubt, the Threshold Deductible shall not apply to claims made pursuant to Section 10.2(c).
(c) Notwithstanding anything to the contrary contained in this Article X, but subject to the limitations in this Section 10.3, the Sellers will not have any liability pursuant to Sections 10.2(a) (other than for breaches of the Excluded Representations for which the following limitation will not apply) in excess of the Base Escrow Amount. For the avoidance of doubt, the foregoing limitation shall not apply to any adjustments under claims made pursuant to Section 1.6, any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’) or Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ maximum aggregate liability to Buyer for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss and Expense shall be $7.7 million (the “Cap”10.2(c); provided that the Cap shall not apply to any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) or resulting from fraud or willful misconduct by Sellers or any covenants and agreements made by any party hereto which are to be performed after the Closing Date. Except with regard to compensation for claims paid to third parties, no indemnifying party shall have any liability to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits.
(d) Except Notwithstanding anything to the contrary contained in this Article X, but subject to the limitations in this Section 10.3, (i) the Sellers will not have any liability pursuant to Section 10.2(a) for equitable remedies breaches of the Excluded Representations in an amount that exceeds 50% of the Base Amount, (includingii) no Seller will have any liability pursuant to Section 10.2(b) in an amount that exceeds 50% of the allocable portion of the Base Amount attributable to that Seller pursuant to this Agreement and (iii) the Sellers will not have any liability pursuant to Section 10.2(c) in an amount that exceeds the Base Amount and no Seller will have any liability pursuant to Section 10.2(c) in an amount that exceeds such Seller’s allocable portion of the Base Amount attributable to that Seller pursuant to this Agreement.
(e) Notwithstanding any other provision of this Agreement, without limitationno Seller shall be liable for any indemnification obligation of any other Seller for a breach of the representations and warranties of such other Seller in Article IV, injunctive reliefthe breach by any other Seller of any covenant or agreement made solely by such other Seller or any fraud perpetrated by such other Seller. In addition to the other limitations set forth in this Section 10.3, no Seller shall be liable for any indemnification obligation pursuant to Section 10.2(a) or Section 10.2(c) in an amount greater than its Allocable Share of the Buyer’s Losses.
(f) Notwithstanding anything to the contrary contained in this Agreement, but subject to the limitations in this Section 10.3, any obligations of the Sellers or any Seller to the Buyer hereunder (i) with respect to all claims other than claims pursuant to Section 10.2(c), will first be drawn against the Base Escrow Amount and if the Base Escrow Amount is reduced to zero, then each Seller shall be liable for its Allocable Share of all such remaining Losses, and (ii) with respect to all claims pursuant to Section 10.2(c), will first be drawn against the Special Escrow Amount and if the Special Escrow Amount is reduced to zero, then each Seller shall be liable for its Allocable Share of all such remaining Losses. If the Buyer is paid or distributed any portion of the Base Escrow Amount in satisfaction of Losses resulting from an inaccuracy or breach of the representations and warranties of any Seller contained in Article IV of this Agreement or a breach by a Seller of a covenant contained in this Agreement, the breaching Seller shall indemnify each non-breaching Seller in an amount equal to the product of (i) the portion of the Base Escrow Amount paid or distributed to the Buyer as a result of such breach or inaccuracy and (ii) the Allocable Share applicable to such non-breaching Seller; provided, that any such indemnity obligation by a breaching Seller shall in no event exceed 50% of the proceeds actually received by such Seller pursuant to this Agreement. In addition, if the Buyer is paid or distributed any portion of the Base Escrow Amount in satisfaction of Losses that would cause any Seller (indirectly through the satisfaction of Losses from the Base Escrow Amount) to be responsible for more than its Allocable Share of any indemnification claim (other than a claim resulting from an inaccuracy or breach of the representations and warranties of that Seller contained in Article IV of this Agreement or a breach by a Seller of a covenant contained in this Agreement) (an “Over Paying Seller”), then each other Seller who is held responsible (indirectly through the satisfaction of Losses from the Base Escrow Account) for less than its Allocable Share (an “Under Paying Seller”) shall indemnify the Over Paying Seller in an amount equal to the amount by which the Under Paying Seller’s Allocable Share of such Losses exceeds the amount for which the Under Paying Seller was held responsible (indirectly through the satisfaction of Losses from the Escrow Account) (such amount, the “True Up Amount”). The aggregate True Up Amount owing from any Under Paying Seller to any Over Paying Seller shall be determined at the earlier of (a) the time that any remaining funds representing the Base Escrow Amount in the absence of fraudEscrow Account are distributed to the Sellers and (b) the time that all funds representing the Base Escrow Amount in the Escrow Account are exhausted pursuant to indemnification claims. If clause (a) applies, then, to the extent possible, the parties hereto acknowledge remaining funds representing the Base Escrow Amount in the Escrow Account shall be allocated among the Sellers to satisfy all True Up Amounts. If clause (b) applies, or clause (a) applies but there are insufficient remaining funds representing the Base Escrow Amount in the Escrow Account to satisfy the True Up Amount of an Under Paying Seller, then that Under Paying Seller shall pay the Over Paying Seller that Under Paying Seller’s True Up Amount within ten Business Days after the aggregate True Up Amount owing from that Under Paying Seller to such Over Paying Seller is determined.
(g) The Sellers’ and agree that the sole Buyer’s right to indemnification pursuant to Section 10.1 and exclusive remedy Section 10.2, respectively, will be reduced by the amount payable by a third party (including an insurance company), or paid by such third party to another for the account or benefit of Buyer and Sellerthe Sellers or the Buyer, as the case may be, with respect to the settlement or resolution of a claim for which the Sellers or the Buyer, as the case may be, was entitled to indemnification hereunder. The Buyer shall promptly remit to the Sellers any insurance or other third party proceeds that are paid to the Buyer with respect to Losses for which the Buyer previously has been compensated pursuant to Section 10.2.
(h) The Buyer’s right to indemnification pursuant to Section 10.2 on account of any Losses will be reduced by the net amount of the Tax benefits actually realized by the Buyer or its Affiliates by reason of such Loss (including any Tax benefit arising in subsequent taxable years); provided, however that any deductions or credits resulting from such Losses shall be treated as the first deductions or credits taken on any Tax Return. The Buyer shall use commercially reasonable efforts to claim and after realize such Tax benefits in the earliest Tax year allowable by applicable Law. To the extent that any such Tax benefit is actually realized in a subsequent year, the Buyer and Holdco shall make a payment to each Seller equal to that Seller’s Allocable Portion of the amount of such Tax benefit.
(i) Neither the Buyer nor the Sellers are entitled to indemnification for lost profits, diminution in value, multiples of earnings, punitive damages, indirect damages, incidental damages, consequential damages, exemplary damages, special damages or similar damages.
(j) The Buyer, absent fraud or misrepresentation by the Sellers, is not entitled to indemnification pursuant to Section 10.2 to the extent that such matter was included in the Net Working Capital calculation or the calculation of the Final Purchase Price.
(k) The Buyer’s right to indemnification pursuant to Section 10.2 on account of any Losses will be reduced by the amount of any reserve reflected on Holdco’s consolidated books and records as of the Closing Date with respect established for the general category of items or matters similar in nature to the specific items or matters giving rise to such Loss or to the extent that such matter was included in the Net Working Capital calculation or the calculation of the Final Purchase Price.
(l) The Buyer’s right to indemnification pursuant to Section 10.2(c) on account of any Losses relating to matters set forth on Schedule 10.2(c) shall not be subject to any Loss deductible and Expense whatsoever and shall be paid by the Sellers from the first dollar; provided, however that the Special Escrow Amount shall first be used to pay any and all claims for breach or liability under this Agreement or defense costs and expenses associated with the litigation described in clause (ii) of Schedule 10.2(c). The Buyer’s right to indemnification pursuant to Section 10.2(c) on account of any of the transactions contemplated hereby Losses relating to matters set forth on Schedule 10.2(c) shall be solely in accordance with, and limited by, capped at the indemnification provisions set forth in this Article IXBase Amount.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Standex International Corp/De/), Stock Purchase Agreement (Standex International Corp/De/)
Survival; Limitations. (a) The Subject to subsection (b) below, the parties agree that Seller's warranties and representations contained in Sections 4.1 of this Agreement shall survive Buyer's purchase of the Properties and the Closing Date for a period ending one year following the Closing Date (the "Limitation Period"). Such termination as of the close of the Limitation Period shall apply to known as well as unknown breaches of such warranties or representations. Subject to subsection (b) below, Buyer's waiver and release set forth in Section 2.4 shall apply fully to liabilities under such representations and warranties not set forth in a Claim Notice as described below. Buyer specifically acknowledges that such termination of liability represents a material element of the parties consideration to Seller.
(b) Any claim of Buyer based upon a breach of any representation or warranty or covenant or a claim under any indemnity contained in or made pursuant to this Agreement or any representation, warranty, covenant or indemnity contained in any other document or instrument delivered by Seller to Buyer at Closing (collectively a "Breach") shall be deemed expressed, if at all, in writing setting forth in reasonable detail the basis and character of the claim (a "Claim Notice"), and must be delivered to have been made on the date hereof and on the Closing Date, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending May 7, 2008 (the “Survival Period”); provided that if on or Seller prior to the expiration of the Survival applicable Limitation Period. Notwithstanding the foregoing, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereof, the indemnified party shall continue to have the Buyer's right to make and recover any claim pursuant to a Claim Notice shall be indemnified subject to the following: (i) with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the a Breach of Seller's representations and warranties contained in this Agreement or a Breach under an indemnity contained in the Assignment of Intangibles or the Assignment of Leases (as such terms are defined in Section 3.17 (‘Environmental Matters’6.1(a) below), 3.18 Buyer shall not make any claim on account of such Breach unless and until the aggregate measure of such claims with respect to the Property exceeds $500,000, in which event Buyer's claims shall be limited to an amount equal to the amount by which such aggregate claims exceed such $500,000 threshold and (‘Circulation’ii) and Section 3.20 Seller's aggregate liability for claims arising out of all Breaches (‘Taxes’i.e., those described in clause (i) above as well as all other Breaches) shall survive until not, in the expiration aggregate, exceed $5,000,000.00 exclusive of the applicable statute amounts of limitations period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Sellers’ Authority’), 3.16 (‘Brokers’) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made any insurance proceeds actually received by any party hereunder Seller which are to be performed after the Closing Date applied to Breaches, and (iii) Buyer shall survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification have no right to deliver a Claim Notice with respect to the underlying a Breach of a representation and warranty remains available of Seller contained in accordance with this Agreement to the foregoing provisions extent that Buyer had knowledge of such Breach as of the Closing Date. Notwithstanding anything to the contrary provided in this Agreement, in no event shall Seller be liable to Buyer for any consequential or punitive damages based upon any breach of this Agreement, including breaches of representation or warranty. Subject to applicable principles of fraudulent conveyance, in no event shall Buyer seek satisfaction for any obligation from any shareholders, officers, directors, employees, agents, legal representatives, successors or assigns of such trustees or beneficiaries, nor shall any such person or entity have any personal liability for any such obligations of Seller. Provided, however, that the limitations set forth in this Section 9.1(a4.4(b) (including as extended pursuant to shall not apply in the first proviso hereof)event of fraud.
(bc) Except Seller shall have a period of 30 days within which to cure a Breach for any Loss which a Claim Notice has been received, or, if such Breach cannot reasonably be cured within 30 days, an additional reasonable time period of up to an additional 60 days (for a total of 90 days), so long as such cure has been commenced within such 30 days and Expense suffered by Buyer based on is at all times diligently pursued. If the breach Breach is not cured after actual written notice and within such cure period, Buyer's sole remedy shall be an action at law for damages against Seller, which must be commenced with respect to a Breach of any a representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers, Buyer shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) or a Breach of this Agreement exceeds $100,000 (the “Threshold”). Once the Threshold has been reached, Buyer shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below for the aggregate amount of Loss and Expense suffered by Buyer, including any and all claims which individually or in the aggregate did not reach the Threshold. Notwithstanding the foregoing, the Threshold shall not apply to any adjustments under Section 1.6, any Loss and Expense suffered by Buyer based on any breach of any representation or warranty a covenant contained in Section 3.17 4.2 hereof, if at all, within fifteen (‘Environmental Matters’15) or Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ maximum aggregate liability to Buyer for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss and Expense shall be $7.7 million (the “Cap”); provided that the Cap shall not apply to any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) or resulting from fraud or willful misconduct by Sellers or any covenants and agreements made by any party hereto which are to be performed months after the Closing Date. Except with regard to compensation for claims paid to third parties, no indemnifying party The existence or pendency of such cure rights shall have any liability to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits.
(d) Except for equitable remedies (including, without limitation, injunctive relief) and in the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of Buyer and Seller, as the case may be, from and after not delay the Closing Date with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under Date. The provisions of this Agreement Section 4.4 shall survive the Closing or any termination of the transactions contemplated hereby shall be solely in accordance with, and limited by, the indemnification provisions set forth in this Article IXAgreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Weingarten Realty Investors /Tx/), Purchase and Sale Agreement (Weingarten Realty Investors /Tx/)
Survival; Limitations. (a) The representations and warranties of the parties contained in or made pursuant to this Agreement shall be deemed to have been made on the date hereof and on the Closing Date, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending May 7, 2008 18 months thereafter (the “Survival Period”); provided that if on or prior to the expiration of the Survival Period, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereof, the indemnified party shall continue to have the right to be indemnified with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the representations and warranties contained in in, Section 3.17 3.16 (‘Environmental Matters’), 3.18 Section 3.19 (‘CirculationTaxes’) and Section 3.20 (‘TaxesInvestment Representations’) shall survive until the expiration of the applicable statute of limitations period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Sellers’ AuthorityAuthority Relative to the Agreement’), 3.16 3.21 (‘Brokers’) and ), 4.2 (‘Buyer’s AuthorityAuthority Relative to the Agreement’) and 4.8 (‘Brokers’) and all covenants and agreements made by any party hereunder which are to be performed after the Closing Date shall survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification with respect to the underlying representation and warranty remains available in accordance with the foregoing provisions of this Section 9.1(a) (including as extended pursuant to the first proviso hereof).
(b) Except for any Loss and Expense (as defined in Section 9.2) suffered by Buyer based on the breach of any representation or warranty contained in Section 3.17 3.16 (‘Environmental Matters’), Section 3.18 3.19 (‘CirculationTaxes’) and Section 3.20 (‘TaxesInvestment Representations’) or resulting from fraud or willful misconduct by SellersSellers or M▇▇▇▇▇ Communications, Buyer and/or GateHouse Media shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer and/or GateHouse Media subject to indemnification under Section 9.2(a) of this Agreement exceeds $100,000 1,000,000 (the “Threshold”). Once the Threshold has been reached, Buyer and/or GateHouse Media shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below for the aggregate amount of Loss and Expense suffered by BuyerBuyer and/or GateHouse Media, including any and all claims which individually or in the aggregate did not reach excess of the Threshold. Notwithstanding the foregoing, the Threshold shall not apply to any adjustments under Section 1.6, any Loss and Expense suffered by Buyer and GateHouse Media based on any breach of any representation or warranty contained in , Section 3.17 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘TaxesInvestment Representations’) or resulting from fraud or willful misconduct by Sellers or M▇▇▇▇▇ Communications or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ and M▇▇▇▇▇ Communication’s maximum aggregate liability to Buyer and GateHouse Media for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss and Expense shall be $7.7 11.5 million (the “Cap”); provided that the Cap shall not apply to any Loss and Expense suffered by Buyer and GateHouse Media based on any breach of any representation or warranty contained in Section 3.17 3.16 (‘Environmental Matters’), Section 3.18 3.19 (‘CirculationTaxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or M▇▇▇▇▇ Communications or any covenants and agreements made by any party hereto which are to be performed after the Closing Date. Except with regard to compensation for claims paid to third parties, no indemnifying party shall have any liability to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits.
(d) Except for enforcement of the Note or equitable remedies (including, without limitation, injunctive relief) and in the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of Buyer and Sellerthe parties, as the case may be, from and after the Closing Date with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under this Agreement or any of the transactions contemplated hereby shall be solely in accordance with, and limited by, the indemnification provisions set forth in this Article IXAgreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Morris Publishing Finance Co), Asset Purchase Agreement (Morris Publishing Finance Co)
Survival; Limitations. (a) The representations and warranties of the parties contained Notwithstanding anything in or made pursuant to this Agreement shall be deemed to have been made on the date hereof contrary, the Parties hereto agree that (i) the representations, warranties and on the Closing Date, covenants set forth in Section 2.1 through Section 2.2 of this Agreement shall survive the Closing Date and shall remain operative and in full force and effect for until the period ending May 7, 2008 date that is sixty (the “Survival Period”); provided that if on or prior to the expiration of the Survival Period, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereof, the indemnified party shall continue to have the right to be indemnified with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the representations and warranties contained in Section 3.17 (‘Environmental Matters’), 3.18 (‘Circulation’60) and Section 3.20 (‘Taxes’) shall survive until days following the expiration of the applicable statute of limitations period plus 90 days and (giving effect to any waiver, extension or mitigation thereof) (the “Survival Period”), (ii) in no event shall the aggregate liability of Rockpoint (as to the representations and warranties contained in Sections 3.2 Section 2.1) exceed the Purchase Price, (‘Sellers’ Authority’), 3.16 (‘Brokers’iii) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made by any party hereunder which are to be performed after the Closing Date shall survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification with respect to the underlying representation representations and warranty remains available warranties in accordance with the foregoing provisions of Section 2.1(f), Rockpoint’s liability shall be limited to U.S. taxes, interest, penalties, additions to tax, contest costs, and other reasonable professional fees and expenses and shall be paid on an after-tax basis and (iv) in no event shall any Party be liable under this Section 9.1(aAgreement for (1) (including as extended pursuant any incidental, consequential, special and indirect damages except to the first proviso hereof)extent such damages are actually incurred and were reasonably foreseeable, and (2) any punitive damages and damages based on any multiple of revenue or income unless, and only to the extent, actually awarded by, or to, a governmental authority or other third party.
(b) Except for To the extent permitted by law, the Parties shall use commercially reasonable efforts to mitigate any Loss and Expense suffered loss, liability, claim, action, judgment, settlement, interest, award, penalty, fine, cost, U.S. tax, or other expense of any type or kind (a “Loss”), including by Buyer based on availing the Rockpoint REITs, at the expense of Rockpoint, of the mitigation provisions available to real estate investment trusts under the Code. Without limiting the foregoing, with respect to any claim against Rockpoint arising out of a breach of any representation or warranty contained in Section 3.17 under this Agreement (‘Environmental Matters’a “Veris Claim”), Section 3.18 (‘Circulation’i) VRLP, the General Partner and the Partnership shall be required to first bring a timely claim under that certain buyers representations and warranties insurance policy issued by GAIG with respect to the transactions contemplated by this Agreement. (the “R&W Insurance Policy”) and Section 3.20 exhaust all remedies thereunder, (‘Taxes’ii) any Loss shall be calculated net of any Insurance Proceeds, and (iii) in no event shall VRLP, the General Partner or resulting from fraud or willful misconduct by Sellers, Buyer shall not the Partnership be entitled to indemnification under this Agreement recover any amounts from Rockpoint on account of any Loss for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) of this Agreement exceeds $100,000 (the “Threshold”). Once the Threshold has been reached, Buyer shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below for the aggregate amount of Loss and Expense suffered by Buyer, including any and all claims which individually or in the aggregate did not reach the Threshold. Notwithstanding the foregoingVRLP, the Threshold shall not apply to General Partner or the Partnership, as applicable, has received Insurance Proceeds. In furtherance thereof, if VRLP, the General Partner or the Partnership recovers any adjustments under Section 1.6, any Loss and Expense suffered by Buyer based amounts from Rockpoint on any breach account of any representation or warranty contained in Section 3.17 Veris Claim (‘Environmental Matters’a “Claim Payment”) or Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ maximum aggregate liability to Buyer for indemnification claims under Section 9.2(a) of this Agreement subsequently receives Insurance Proceeds with respect to any Loss and Expense such Veris Claim, then VRLP, the General Partner or the Partnership, as applicable, shall be $7.7 million (pay to Rockpoint an amount equal to the “Cap”); provided excess of the Claim Payment received over the amount of the Claim Payment that would have been due if the Cap shall not apply to any Loss and Expense suffered by Buyer based on any breach Insurance Proceeds had been received, realized or recovered before the Claim Payment was made. No provider of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) or resulting from fraud or willful misconduct by Sellers or any covenants and agreements made by any party hereto which are to be performed after the Closing Date. Except with regard to compensation for claims paid to third parties, no indemnifying party R&W Insurance Policy shall have any liability subrogation right, entitlement of privilege, or other recourse whatsoever against Rockpoint pursuant to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits.
(d) Except for equitable remedies (including, without limitation, injunctive relief) and this Agreement other than in the absence case of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of Buyer and Seller, as the case may be, from and after the Closing Date with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under this Agreement or any of the transactions contemplated hereby shall be solely in accordance with, and limited by, the indemnification provisions set forth in this Article IX.Fraud by Rockpoint. As used herein:
Appears in 1 contract
Sources: Reit Interest and Partnership Interest Purchase Agreement (Veris Residential, L.P.)
Survival; Limitations. The rights to indemnification under this Article IX shall be subject to the following limitations:
(a) The Notwithstanding anything herein to the contrary, (i) each of the representations and warranties of the parties contained in or made pursuant to Parties under this Agreement shall be deemed to have been made on survive the date hereof and on Closing for a period of twelve (12) months after the Closing Date, and (ii) each of the covenants and other agreements of the Seller contained in this Agreement shall survive the Closing Date and shall remain operative and in full force and effect for the period ending May 7contemplated by its terms or, 2008 if no such period is so contemplated, until the twelve (12)-month anniversary of the Closing Date (as applicable, the “Survival Period”). Any Claim for indemnification under this Article IX shall be made by giving notice under Section 9.4 to the Buyer or the Seller, as applicable. Any such notice must be given on or before the expiration of the applicable Survival Period with respect to the subject matter of such Claim, and any Claim for indemnification given after such date will have no effect; provided provided, however, that if in the event a Claim has been properly made on or prior to the expiration of such applicable Survival Period and such Claim is unresolved as of the Survival Periodconclusion of such time limitation, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereofif any, the indemnified party shall continue to have then the right to be indemnified indemnification with respect to such indemnification claim Claim shall remain in effect until such claim for indemnification has matter shall have been satisfied or otherwise resolved as provided in this Article IX; and provided further that the representations and warranties contained in Section 3.17 (‘Environmental Matters’), 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) shall survive until the expiration of the applicable statute of limitations period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Sellers’ Authority’), 3.16 (‘Brokers’) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made by any party hereunder which are to be performed after the Closing Date shall survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification with respect to the underlying representation and warranty remains available in accordance with the foregoing provisions of this Section 9.1(a) (including as extended pursuant to the first proviso hereof)finally resolved.
(b) Except for any Loss and Expense suffered by Buyer based on the breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers, Buyer The Seller shall not be required to indemnify the Buyer Indemnified Parties under Section 9.1(a) until the Buyer Losses, individually or in the aggregate, as to which the Buyer Indemnified Parties would otherwise be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) of this Agreement exceeds exceed $100,000 200,000 (the “ThresholdBasket”). Once , at which point the Threshold has been reached, Buyer Seller shall be entitled liable to full indemnification from Sellers pursuant reimburse the Buyer Indemnified Parties for all the Buyer Losses, subject to Section 9.2(a) below for 9.6(c), in excess of the aggregate amount of Loss and Expense suffered by BuyerBasket; provided, including any and all claims which individually or in however, that the aggregate did not reach the Threshold. Notwithstanding the foregoing, the Threshold foregoing limitation shall not apply to any adjustments under Section 1.6, any Loss and Expense suffered by Buyer based on indemnification claim (or Losses pertaining thereto) in respect of any breach of any representation Fundamental Representation or warranty contained in Section 3.17 (‘Environmental Matters’) or Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Datebased on fraud, intentional misrepresentation or willful misconduct.
(c) Sellers’ maximum The aggregate liability to amount of the Losses for which the Seller or Buyer for indemnification claims under Section 9.2(a) of this Agreement shall be liable with respect to this Agreement under this Article IX shall not, in any Loss and Expense shall be $7.7 million event, exceed an amount equal to five point two percent (5.2%) of the Headline Purchase Price (the “Cap”), and any Buyer Losses shall be recovered solely from the Escrow Amount; provided provided, however, that the Cap foregoing limitations shall not apply to any Loss and Expense suffered by Buyer indemnification claim (or Losses pertaining thereto) based on any breach fraud, intentional misrepresentation or willful misconduct. Any Seller Losses shall be paid by the Buyer to the Seller by wire transfer of immediately available funds to the account or accounts designated by the Seller without set-off or deduction of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) or resulting from fraud or willful misconduct by Sellers or any covenants and agreements made by any party hereto which are to be performed after the Closing Date. Except with regard to compensation for claims paid to third parties, no indemnifying party shall have any liability to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profitskind.
(d) Except for equitable remedies (including, without limitation, injunctive relief) and in the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of Buyer and Seller, as the case may be, from and after the Closing Date with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under this Agreement or any of the transactions contemplated hereby shall be solely in accordance with, and limited by, the indemnification provisions set forth in this Article IX.
Appears in 1 contract
Sources: Asset Purchase Agreement
Survival; Limitations. (a) The Subject to subsection (b) below, the parties agree that Seller's warranties and representations contained in Sections 4.1 of this Agreement shall survive Buyer's purchase of the Properties and the Closing Date for a period ending on the earlier of the first anniversary of the applicable Closing Date for the affected Property or December 15, 2002 (the "Limitation Period"). Such termination as of the close of the Limitation Period shall apply to known as well as unknown breaches of such warranties or representations. Subject to subsection (b) below, Buyer's waiver and release set forth in Section 2.4 shall apply fully to liabilities under such representations and warranties not set forth in a Claim Notice as described below. Buyer specifically acknowledges that such termination of liability represents a material element of the parties consideration to Seller.
(b) Any claim of Buyer based upon a breach of any representation or warranty or covenant or a claim under any indemnity contained in or made pursuant to this Agreement or any representation, warranty, covenant or indemnity contained in any other document or instrument delivered by Seller to Buyer at Closing (collectively a "Breach") shall be deemed expressed, if at all, in writing setting forth in reasonable detail the basis and character of the claim (a "Claim Notice"), and must be delivered to have been made on the date hereof and on the Closing Date, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending May 7, 2008 (the “Survival Period”); provided that if on or Seller prior to the expiration of the Survival applicable Limitation Period. Notwithstanding the foregoing, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereof, the indemnified party shall continue to have the Buyer's right to make and recover any claim pursuant to a Claim Notice shall be indemnified subject to the following: (i) with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the a Breach of Seller's representations and warranties contained in this Agreement or a Breach under an indemnity contained in the Assignment of Intangibles or the Assignment of Leases (as such terms are defined in Section 3.17 (‘Environmental Matters’6.1(a) below), 3.18 Buyer shall not make any claim on account of such Breach unless and until the aggregate measure of such claims with respect to the Property exceeds $500,000, in which event Buyer's claims shall be limited to an amount equal to the amount by which such aggregate claims exceed such $500,000 threshold and (‘Circulation’ii) and Section 3.20 Seller's aggregate liability for claims arising out of all Breaches (‘Taxes’i.e., those described in clause (i) above as well as all other Breaches) shall survive until not, in the expiration aggregate, exceed $2,500,000.00 exclusive of the applicable statute amounts of limitations period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Sellers’ Authority’), 3.16 (‘Brokers’) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made any insurance proceeds actually received by any party hereunder Seller which are to be performed after the Closing Date applied to Breaches, and (iii) Buyer shall survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification have no right to deliver a Claim Notice with respect to the underlying a Breach of a representation and warranty remains available of Seller contained in accordance with this Agreement to the foregoing provisions extent that Buyer had knowledge of such Breach as of the Closing Date. Notwithstanding anything to the contrary provided in this Agreement, in no event shall Seller be liable to Buyer for any consequential or punitive damages based upon any breach of this Agreement, including breaches of representation or warranty. Subject to applicable principles of fraudulent conveyance, in no event shall Buyer seek satisfaction for any obligation from any shareholders, officers, directors, employees, agents, legal representatives, successors or assigns of such trustees or beneficiaries, nor shall any such person or entity have any personal liability for any such obligations of Seller. Provided, however, that the limitations set forth in this Section 9.1(a4.4(b) (including as extended pursuant to shall not apply in the first proviso hereof)event of fraud.
(bc) Except Seller shall have a period of 30 days within which to cure a Breach for any Loss which a Claim Notice has been received, or, if such Breach cannot reasonably be cured within 30 days, an additional reasonable time period of up to an additional 60 days (for a total of 90 days), so long as such cure has been commenced within such 30 days and Expense suffered by Buyer based on is at all times diligently pursued. If the breach Breach is not cured after actual written notice and within such cure period, Buyer's sole remedy shall be an action at law for damages against Seller, which must be commenced with respect to a Breach of any a representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers, Buyer shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) or a Breach of this Agreement exceeds $100,000 (the “Threshold”). Once the Threshold has been reached, Buyer shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below for the aggregate amount of Loss and Expense suffered by Buyer, including any and all claims which individually or in the aggregate did not reach the Threshold. Notwithstanding the foregoing, the Threshold shall not apply to any adjustments under Section 1.6, any Loss and Expense suffered by Buyer based on any breach of any representation or warranty a covenant contained in Section 3.17 (‘Environmental Matters’4.2 hereof or a Breach of an indemnity obligation in Section 2.4(f) hereof, if at all, by a date which is the earlier of the first anniversary of the applicable Closing Date for the Property affected by the Breach or Section 3.20 (‘Taxes’) December 15, 2002. The existence or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ maximum aggregate liability to Buyer for indemnification claims under Section 9.2(a) pendency of this Agreement with respect to any Loss and Expense shall be $7.7 million (the “Cap”); provided that the Cap such cure rights shall not apply to any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) or resulting from fraud or willful misconduct by Sellers or any covenants and agreements made by any party hereto which are to be performed after delay the Closing Date. Except with regard to compensation for claims paid to third parties, no indemnifying party The provisions of this Section 4.4 shall have any liability to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits.
(d) Except for equitable remedies (including, without limitation, injunctive relief) and in the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of Buyer and Seller, as the case may be, from and after survive the Closing Date with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under this Agreement or any termination of the transactions contemplated hereby shall be solely in accordance with, and limited by, the indemnification provisions set forth in this Article IXAgreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Burnham Pacific Properties Inc)
Survival; Limitations. (a) The representations and warranties of the parties contained in or made pursuant to this Agreement shall be deemed to have been made on the date hereof and on the Closing Date, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending May 7, 2008 (the “Survival Period”); provided that if on or prior to the expiration of the Survival Period, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereof, the indemnified party shall continue to have the right to be indemnified with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the representations and warranties contained in Section 3.17 (‘Environmental Matters’), 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) this Agreement shall survive until for, and claims for indemnification shall only be valid to the expiration of the applicable statute of limitations extent that such claims are made within a period plus 90 days and the representations and warranties contained in Sections 3.2 of, twenty-four (‘Sellers’ Authority’), 3.16 (‘Brokers’24) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made by any party hereunder which are to be performed after months from the Closing Date Date; provided, however, that there shall survive without be no time limitperiod limitation, with and no limitation under the exception following provisions of Sections 9.2(a) and 9.3(a)this Section, which shall only remain operative and in full force and effect as long as indemnification with respect to the underlying representation and warranty remains available in accordance with the foregoing provisions of this Section 9.1(a) (including as extended pursuant to the first proviso hereof).
(b) Except for any Loss and Expense suffered by Buyer based on the breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers, Buyer shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) of this Agreement exceeds $100,000 (the “Threshold”). Once the Threshold has been reached, Buyer shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below for the aggregate amount of Loss and Expense suffered by Buyer, including any and all claims which individually or in the aggregate did not reach the Threshold. Notwithstanding the foregoing, the Threshold shall not apply to any adjustments under Section 1.6, any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’) or Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ maximum aggregate liability to Buyer for indemnification claims under Section 9.2(aarising out of (i) of this Agreement Seller’s failure to have in effect a California Finance Lenders License with respect to any Loss California originated Leases and Expense Loans included in the Portfolio or (ii) Section 7.01(d)(ii). Notwithstanding any other provision of this Article VII (other than the proviso in the first sentence of this Section 7.07), in no event shall Seller be $7.7 million liable to indemnify the Purchaser Indemnified Parties for Indemnity Losses arising under Section 7.01(a) (other than Indemnity Losses arising under Section 4.01 or Section 4.02 or Indemnity Losses based upon the “Cap”); provided that the Cap shall not apply actual fraud of Seller) (i) with respect to any Loss and Expense suffered by Buyer based on any breach of any a representation or warranty contained relating to any individual Loan or Lease, in excess of an amount calculated by multiplying the amount of the Closing Cash Payment, as finally determined pursuant to Section 3.17 1.04, by (‘Environmental Matters’)x) in the case of a breach of a representation or warranty relating to a Loan, Section 3.18 the quotient of (‘Circulation’A) the outstanding principal balance of such Loan as of the Closing Date, divided by (B) the outstanding principal balance of all Loans as of the Closing Date or resulting from fraud (y) in the case of a breach of a representation or willful misconduct warranty relating to a Lease, the quotient of (A) the outstanding remaining rental payments of such Lease as of the Closing Date, divided by Sellers or any covenants and agreements made by any party hereto which are to be performed after (B) the outstanding remaining rental payments of all Leases as of the Closing Date. Except with regard With respect to compensation all Indemnity Losses (other than those referenced in the parenthetical of the second sentence of this Section and as to which no limit in amount shall apply), in no event shall Seller be liable to indemnify the Purchaser Indemnified Parties for Indemnity Losses arising under Section 7.01(a) for claims paid which an Indemnification Notice is received by Seller prior to third parties, the one year anniversary date of the Closing in excess of the Closing Cash Payment. With respect to Indemnity Losses (other than those referenced in the parenthetical of the second sentence of this Section and as to which no indemnifying party limit in amount shall have any liability apply) which relate to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits.
(d) Except for equitable remedies (including, without limitation, injunctive relief) and in the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of Buyer and Seller, as the case may be, from and Indemnification Notice which was delivered after the Closing Date with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under one year anniversary of this Agreement or any and prior to the second anniversary of the transactions contemplated hereby Closing Date, in no event shall Seller be solely liable to indemnify the Purchaser Indemnified Parties for Indemnity Losses in accordance with, and limited by, excess of twenty-five percent (25%) of the indemnification provisions set forth in this Article IXClosing Cash Payment.
Appears in 1 contract
Survival; Limitations. Notwithstanding anything else in this Agreement or any Additional Transfer Document or Ancillary Agreement to the contrary:
(ai) The Except as set forth in Section 9.14(C)(vi), the representations and warranties of the parties contained in or made pursuant to Seller and the Purchaser, respectively, under this Agreement shall be deemed to have been made on the date hereof and on the Closing Dateany Additional Transfer Document or Ancillary Agreement, and any indemnification obligations -56- arising therefrom, shall survive the Closing Date and shall remain operative expire and terminate on the date which is 18 months following the Closing Date; PROVIDED, HOWEVER, that the Sellers' representations and warranties in Section 3.1(B)(ii), and the Purchaser's representations and warranties in Section 4.1(B)(ii), shall expire and terminate upon the Closing. The covenants of the parties shall expire in accordance with their terms, and the indemnification obligations of the Purchaser or the Seller, respectively, on account of the Special Indemnification Obligations (as defined in Section 9.14(C)(ii), below) shall continue in full force and effect for the period ending May 7, 2008 following Closing (the “Survival Period”); provided that if on or prior to the expiration of the Survival Period, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereof, the indemnified party shall continue to have the right to be indemnified with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the representations and warranties contained in Section 3.17 (‘Environmental Matters’), 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) shall survive until the expiration of the applicable statute of limitations period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Sellers’ Authority’), 3.16 (‘Brokers’) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made by any party hereunder which are to be performed after the Closing Date shall survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification with respect to the underlying representation and warranty remains available in accordance with the foregoing provisions of this Section 9.1(a) (including as extended pursuant to the first proviso hereof).
(b) Except for any Loss and Expense suffered by Buyer based on the breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers, Buyer shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) of this Agreement exceeds $100,000 (the “Threshold”). Once the Threshold has been reached, Buyer shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below for the aggregate amount of Loss and Expense suffered by Buyer, including any and all claims which individually or in the aggregate did not reach the Threshold. Notwithstanding the foregoing, the Threshold shall not apply to any adjustments under Section 1.6, any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’) or Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ maximum aggregate liability to Buyer for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss and Expense shall be $7.7 million (the “Cap”); provided that the Cap shall not apply time limit applicable to any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in indemnification obligations relating to Section 3.17 (‘Environmental Matters’3.1(N), Section 3.18 (‘Circulation’) or resulting from fraud or willful misconduct by Sellers or any covenants and agreements made by any party hereto which are to be performed after the Closing Date. Except with regard to compensation for claims paid to third parties, no indemnifying party shall have any liability to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits.
(d) Except for equitable remedies (including, without limitation, injunctive relief) and in the absence of fraudSellers' Tax Payment Covenant, the parties hereto acknowledge Purchaser's Tax Payment Covenant and agree that Article IV of the sole and exclusive remedy of Buyer and SellerUK Business Transfer Agreement, as the case may be, from shall be as set forth in Section 9.14(C)(vi)), in each case subject to the other limitations of this Section 9.14.
(ii) The Sellers shall not have any indemnification obligations under Section 9.14(A) or otherwise under this Agreement, and after the Closing Date Purchaser shall not have any indemnification obligations under Section 9.14(B) or otherwise under this Agreement: (a) except to the full extent that the Purchaser's Losses, or the Sellers' Losses, respectively, with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under this Agreement individual claim or any related claims arising from the same or substantially similar factual circumstances, exceed $15,000 (a "MATERIAL CLAIM"), in which event such indemnification shall be required to the extent of such Purchaser's Losses or the Sellers' Losses, respectively, including such $15,000 amount (subject also to the limitations provided in succeeding clauses (b) and (c) of this Section 9.14(C)(ii)); (b) except to the extent that the Purchaser's Losses, or the Sellers' Losses, respectively, with respect to all such Material Claims in the aggregate exceed $500,000 (the "INDEMNIFICATION THRESHOLD"), in which event such indemnification shall be required only to the full extent of the transactions contemplated hereby Purchaser's Losses or the Sellers' Losses, respectively, in excess of the Indemnification Threshold (subject also to the preceding clause (a) and the succeeding clause (c) of this Section 9.14(C)(ii)); and (c) to the extent that the Purchaser's Losses in the aggregate, or the Sellers' Losses in the aggregate, respectively, exceed $15,000,000 (the "CAP"), in which event such indemnification shall be solely in accordance withrequired only to the extent of the Purchaser's Losses or the Sellers' Losses, respectively, below the Cap (subject also to the preceding clauses (a) and limited by(b) of this Section 9.14(C)(ii)); provided, however that neither the indemnification provisions limitation to Material Claims set forth in this Article IX.clause (a), above, nor the Basket nor the Cap, shall apply to:
(1) the Seller's indemnification obligations with respect to the Dorset Environmental Matter pursuant to Section 9.14(A)(2);
(2) the Sellers' Consent Indemnification, if applicable under Section 6.4;
(3) the Sellers' indemnification obligations with respect to the Keystone Plans pursuant to Section 9.14(A)(3);
(4) the Sellers' indemnification obligations pursuant to Section 9.14(A)(4), Section 9.14(A)(5) and Section 9.14(A)(6);
(5) the Sellers' indemnification obligations with respect to its covenants or agreements in Section 5.2(P) and Section 5.4(B),
(6) the Sellers' indemnification obligations with respect to its covenants or agreements in Section 5.6(E), Section 5.6(F) and Section 5.6(G);
(7) the Purchaser's indemnification obligations with respect to the Purchaser Payment Indemnification pursuant to Section 9.14(B)(2) (8) the Purchaser's indemnification obligations with respect to the Purchaser Employment Indemnification pursuant to Section 9.14(B)(3);
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Survival; Limitations. Notwithstanding anything else in this Agreement or any Additional Transfer Document or Ancillary Agreement to the contrary:
(ai) The Except as set forth in Section 9.14(C)(vi), the representations and warranties of the parties contained in or made pursuant to Seller and the Purchaser, respectively, under this Agreement shall be deemed to have been made on the date hereof and on the Closing Dateany Additional Transfer Document or Ancillary Agreement, and any indemnification obligations arising therefrom, shall survive the Closing Date and shall remain operative expire and terminate on the date which is 18 months following the Closing Date; provided, however, that the Sellers' representations and warranties in Section 3.1(B)(ii), and the Purchaser's representations and warranties in Section 4.1(B)(ii), shall expire and terminate upon the Closing. The covenants of the parties shall expire in accordance with their terms, and the indemnification obligations of the Purchaser or the Seller, respectively, on account of the Special Indemnification Obligations (as defined in Section 9.14(C)(ii), below) shall continue in full force and effect for the period ending May 7, 2008 following Closing (the “Survival Period”); provided that if on or prior to the expiration of the Survival Period, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereof, the indemnified party shall continue to have the right to be indemnified with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the representations and warranties contained in Section 3.17 (‘Environmental Matters’), 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) shall survive until the expiration of the applicable statute of limitations period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Sellers’ Authority’), 3.16 (‘Brokers’) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made by any party hereunder which are to be performed after the Closing Date shall survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification with respect to the underlying representation and warranty remains available in accordance with the foregoing provisions of this Section 9.1(a) (including as extended pursuant to the first proviso hereof).
(b) Except for any Loss and Expense suffered by Buyer based on the breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers, Buyer shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) of this Agreement exceeds $100,000 (the “Threshold”). Once the Threshold has been reached, Buyer shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below for the aggregate amount of Loss and Expense suffered by Buyer, including any and all claims which individually or in the aggregate did not reach the Threshold. Notwithstanding the foregoing, the Threshold shall not apply to any adjustments under Section 1.6, any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’) or Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ maximum aggregate liability to Buyer for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss and Expense shall be $7.7 million (the “Cap”); provided that the Cap shall not apply time limit applicable to any Loss and Expense suffered by Buyer based on any breach of any representation or warranty contained in indemnification obligations relating to Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’3.1(N) or resulting from fraud or willful misconduct by Sellers or any covenants and agreements made by any party hereto which are to be performed after the Closing Date. Except with regard to compensation for claims paid to third parties, no indemnifying party shall have any liability to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits.
(d) Except for equitable remedies (including, without limitation, injunctive relief) and in the absence of fraud, the parties hereto acknowledge Sellers' Tax Payment Covenant, the Purchaser's Tax Payment Covenant and agree that Article IV of the sole and exclusive remedy of Buyer and SellerUK Business Transfer Agreement, as the case may be, from shall be as set forth in Section 9.14(C)(vi)), in each case subject to the other limitations of this Section 9.14.
(ii) The Sellers shall not have any indemnification obligations under Section 9.14(A) or otherwise under this Agreement, and after the Closing Date Purchaser shall not have any indemnification obligations under Section 9.14(B) or otherwise under this Agreement: (a) except to the full extent that the Purchaser's Losses, or the Sellers' Losses, respectively, with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under this Agreement individual claim or any related claims arising from the same or substantially similar factual circumstances, exceed $15,000 (a "Material Claim"), in which event such indemnification shall be required to the extent of such Purchaser's Losses or the Sellers' Losses, respectively, including such $15,000 amount (subject also to the limitations provided in succeeding clauses (b) and (c) of this Section 9.14(C)(ii)); (b) except to the extent that the Purchaser's Losses, or the Sellers' Losses, respectively, with respect to all such Material Claims in the aggregate exceed $500,000 (the "Indemnification Threshold"), in which event such indemnification shall be required only to the full extent of the transactions contemplated hereby Purchaser's Losses or the Sellers' Losses, respectively, in excess of the Indemnification Threshold (subject also to the preceding clause (a) and the succeeding clause (c) of this Section 9.14(C)(ii)); and (c) to the extent that the Purchaser's Losses in the aggregate, or the Sellers' Losses in the aggregate, respectively, exceed $15,000,000 (the "Cap"), in which event such indemnification shall be solely in accordance withrequired only to the extent of the Purchaser's Losses or the Sellers' Losses, respectively, below the Cap (subject also to the preceding clauses (a) and limited by(b) of this Section 9.14(C)(ii)); provided, however that neither the indemnification provisions limitation to Material Claims set forth in this Article IX.clause (a), above, nor the Basket nor the Cap, shall apply to:
(1) the Seller's indemnification obligations with respect to the Dorset Environmental Matter pursuant to Section 9.14(A)(2);
(2) the Sellers' Consent Indemnification, if applicable under Section 6.4;
(3) the Sellers' indemnification obligations with respect to the Keystone Plans pursuant to Section 9.14(A)(3);
(4) the Sellers' indemnification obligations pursuant to Section 9.14(A)(4), Section 9.14(A)(5) and Section 9.14(A)(6);
(5) the Sellers' indemnification obligations with respect to its covenants or agreements in Section 5.2(P) and Section 5.4(B),
(6) the Sellers' indemnification obligations with respect to its covenants or agreements in Section 5.6(E), Section 5.6(F) and Section 5.6(G);
(7) the Purchaser's indemnification obligations with respect to the Purchaser Payment Indemnification pursuant to Section 9.14(B)(2) (8) the Purchaser's indemnification obligations with respect to the Purchaser Employment Indemnification pursuant to Section 9.14(B)(3);
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Sources: Stock and Asset Purchase Agreement (Curtiss Wright Corp)
Survival; Limitations. (a) The Subject to subsection (b) below, the parties agree that Transferors' warranties and representations contained in Sections 4.1 (a) and (b) of this Agreement shall survive Buyer's purchase of the Properties and the Closing Date for a period ending 180 calendar days following the Closing Date (the "Limitation Period"). Such termination as of the close of the Limitation Period shall apply to known as well as unknown breaches of such warranties or representations. Subject to subsection (b) below, Buyer's waiver and release set forth in Section 2.4 shall apply fully to liabilities under such representations and warranties. Buyer specifically acknowledges that such termination of liability represents a material element of the consideration to Transferors.
(b) Any claim of Buyer based upon a breach of any representation or warranty or covenant or a claim under any indemnity contained in this Agreement or any representation, warranty, covenant or indemnity contained in any other document or instrument delivered by Transferors to Buyer at closing (collectively a "Breach") shall be expressed, if at all, in writing setting forth in reasonable detail the basis and character of the claim (a "Claim Notice"), and, in the case of a Breach of Transferors' representations and warranties of the parties contained in or made pursuant to this Agreement or a Breach of a covenant contained in Section 4.2 hereof only, shall be deemed delivered to have been made on the date hereof and on the Closing Date, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending May 7, 2008 (the “Survival Period”); provided that if on or Transferors prior to the expiration of the Survival Limitation Period. Notwithstanding the foregoing, Buyer's right to make and recover any claim pursuant to a notice Claim Notice shall be subject to the following: (i) any matters identified by Buyer during the Confirmation Period which would represent both a breach of representation and result in a Material Adverse Matters Amount shall be treated solely as the latter and shall not be the subject of any claim for indemnification shall have been given in accordance with Section 9.4 hereofbreach of representation under this Article IV, the indemnified party shall continue to have the right to be indemnified (ii) with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the a Breach of Transferors' representations and warranties contained in this Agreement, or a Breach of a covenant contained in Section 3.17 4.2 hereof or a Breach under an indemnity contained in the Assignments of Intangibles or the Assignments of Leases (‘Environmental Matters’as such terms are defined in Section 6.1(a) below), 3.18 Buyer shall not make any claim on account of such Breach unless and until (‘Circulation’A) the aggregate measure of such claims with respect to a Property exceeds $200,000, and Section 3.20 (‘Taxes’B) the aggregate measure of such claims with respect to all of the Properties exceeds $375,000 (the "Threshold"), in which event Buyer's claim shall be limited to an amount equal to (x) the amount by which such aggregate exceeds the Threshold, plus (y) an amount equal to two-thirds of the Threshold, (iii) Transferors' aggregate liability for claims arising out of all Breaches (i.e., those described in clause (ii) above as well as all other Breaches) shall survive until not, in the expiration aggregate, exceed an amount equal to three percent (3%) of the applicable statute aggregate Price for all of limitations period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Sellers’ Authority’), 3.16 (‘Brokers’) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made Properties acquired by Buyer exclusive of the amounts of any party hereunder insurance proceeds actually received by Transferors which are to be performed after applied to Claims pursuant to Section 2.4(e), and (iv) Buyer shall have the right to deliver to Transferors Claim Notices with respect to any Breach discovered by Buyer prior to the Closing Date shall survive without time limitsolely if such notice is delivered prior to the Closing Date. Notwithstanding the foregoing, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification with respect to a Claim Notice asserting a breach of the underlying representation and warranty remains available contained in accordance with Section 4.1(b)(vii), the foregoing following shall be substituted for the provisions of clause (ii) of this Section 9.1(a4.4(b): (ii) (including as extended pursuant to the first proviso hereof).
(b) Except for Buyer shall not make any Loss and Expense suffered by Buyer based claim on the account of a breach of any the representation or and warranty contained in Section 3.17 4.1(b)(vii) with respect to any Property unless and until the aggregate measure of such claims with respect to all Properties exceeds $50,000, and only to the extent that such aggregate exceeds $50,000. For purposes of this Section 4.4(b) (‘Environmental Matters’and without limiting the introductory paragraph of Section 4.1), a Breach shall be deemed to be discovered by Buyer prior to the Closing Date only to the extent that any of Davi▇ ▇▇▇▇▇▇, ▇▇ni▇▇ ▇▇▇▇▇, ▇▇se▇▇ ▇▇▇▇▇, ▇▇ot▇ ▇▇▇▇▇▇, ▇▇hn ▇▇▇▇▇▇, ▇▇m ▇▇▇▇▇ ▇▇ Guy ▇▇▇▇▇▇▇▇ ▇▇▇ actual, subjective knowledge of the facts or circumstances giving rise to such breach of representation or warranty or Section 3.18 4.2 covenants. Following receipt of such a pre-closing Claim Notice with respect to which Buyer has the right to make and recover a claim as aforesaid, Transferors may elect, by written notice to Buyer given not later than the first to occur of the date that is ten (‘Circulation’10) business days following the date of the Claim Notice or the Closing Date, to terminate this Agreement as to the Property to which such pre-closing Claim Notice relates and Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers, such Property shall be treated as a Deleted Property and Buyer shall not be entitled to indemnification under this Agreement for any indemnification damages in connection therewith. If Transferors fail to elect to treat any Property which is the subject of a pre-closing Claim Notice as a Deleted Property, the closing as to such Property shall be conducted on the Closing Date. As to pre-closing Claim Notices with respect to which Transferors do not elect to treat the affected Property as a Deleted Property and as to all Claim Notices received by Transferors following the Closing Date as to which Buyer has the right to make and recover a claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) of this Agreement exceeds $100,000 (the “Threshold”). Once the Threshold has been reachedaforesaid, Buyer shall be entitled have the right after (but not before) the Closing Date to full indemnification from Sellers pursuant proceed against Transferors for actual monetary damages based upon such Claim Notice -- subject to Section 9.2(athe cure rights set forth in subparagraph (c) below for and the aggregate amount of Loss limitations set forth above and Expense suffered by Buyer, including any and all claims which individually or in the aggregate did not reach the Thresholdremaining sentences of this subparagraph. Notwithstanding anything to the foregoingcontrary provided in this Agreement, the Threshold in no event shall not apply Transferors be liable to Buyer for any adjustments under Section 1.6, any Loss and Expense suffered by Buyer consequential or punitive damages based on upon any breach of this Agreement, including breaches of representation or warranty. Subject to applicable principles of fraudulent conveyance, in no event shall Buyer seek satisfaction for any obligation from any shareholders, officers, directors, employees, agents, legal representatives, successors or assigns of such trustees or beneficiaries, nor shall any such person or entity have any personal liability for any such obligations of any Transferors.
(c) The Transferors who have committed a Breach for which a Claim Notice has been received shall have a period of 30 days within which to cure such breach, or, if such breach cannot reasonably be cured within 30 days, an additional reasonable time period of up to an additional 60 days, so long as such cure has been commenced within such 30 days and is at all times diligently pursued. If the Breach is not cured after actual written notice and within such cure period, Buyer's sole remedy shall be an action at law for damages against the breaching Transferor or Transferors, which must be commenced with respect to a Breach of a representation or warranty contained in Section 3.17 (‘Environmental Matters’) or Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ maximum aggregate liability to Buyer for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss and Expense shall be $7.7 million (the “Cap”); provided that the Cap shall not apply to any Loss and Expense suffered by Buyer based on any breach or a Breach of any representation or warranty a covenant contained in Section 3.17 (‘Environmental Matters’)4.2 hereof, Section 3.18 (‘Circulation’) if at all, within the Limitation Period; provided, however, that if within the Limitation Period Buyer gives a Claim Notice and the Transferors commence to cure and thereafter terminate such cure effort or resulting from fraud or willful misconduct by Sellers or any covenants and agreements made by any party hereto which are to be performed after the Closing Date. Except with regard to compensation for claims paid to third partiesfail in such cure effort, no indemnifying party Buyer shall have any liability an additional 30 days from the date of written notice from the Transferors of such termination or the expiration of such cure period within which to commence an indemnified party action at law for any punitive, indirect, incidental damages as a consequence of the failure to cure. The existence or consequential damages or loss including, without limitation, loss pendency of revenue or loss of profits.
(d) Except for equitable remedies (including, without limitation, injunctive relief) and in the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of Buyer and Seller, as the case may be, from and after such cure rights shall not delay the Closing Date with respect as to any Loss and Expense whatsoever and any and all claims for breach or liability under a Property not designated as a Deleted Property. The provisions of this Agreement Section 4.4 shall survive the closing or any termination of the transactions contemplated hereby shall be solely in accordance with, and limited by, the indemnification provisions set forth in this Article IXAgreement.
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Survival; Limitations. (a) The Subject to subsection (b) below, the parties agree that Transferors' warranties and representations contained in Sections 4.1 (a) and (b) of this Agreement shall survive Buyer's purchase of the Properties and the Closing Date for a period ending 180 calendar days following the Closing Date (the "Limitation Period"). Such termination as of the close of the Limitation Period shall apply to known as well as unknown breaches of such warranties or representations. Subject to subsection (b) below, Buyer's waiver and release set forth in Section 2.4 shall apply fully to liabilities under such representations and warranties. Buyer specifically acknowledges that such termination of liability represents a material element of the consideration to Transferors.
(b) Any claim of Buyer based upon a breach of any representation or warranty or covenant or a claim under any indemnity contained in this Agreement or any representation, warranty, covenant or indemnity contained in any other document or instrument delivered by Transferors to Buyer at closing (collectively a "Breach") shall be expressed, if at all, in writing setting forth in reasonable detail the basis and character of the claim (a "Claim Notice"), and, in the case of a Breach of Transferors' representations and warranties of the parties contained in or made pursuant to this Agreement or a Breach of a covenant contained in Section 4.2 hereof only, shall be deemed delivered to have been made on the date hereof and on the Closing Date, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending May 7, 2008 (the “Survival Period”); provided that if on or Transferors prior to the expiration of the Survival Limitation Period. Notwithstanding the foregoing, Buyer's right to make and recover any claim pursuant to a notice Claim Notice shall be subject to the following: (i) any matters identified by Buyer during the Confirmation Period which would represent both a breach of representation and result in a Material Adverse Matters Amount shall be treated solely as the latter and shall not be the subject of any claim for indemnification shall have been given in accordance with Section 9.4 hereofbreach of representation under this Article IV, the indemnified party shall continue to have the right to be indemnified (ii) with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the a Breach of Transferors' representations and warranties contained in this Agreement, or a Breach of a covenant contained in Section 3.17 4.2 hereof or a Breach under an indemnity contained in the Assignments of Intangibles or the Assignments of Leases (‘Environmental Matters’as such terms are defined in Section 6.1(a) below), 3.18 Buyer shall not make any claim on account of such Breach unless and until (‘Circulation’A) the aggregate measure of such claims with respect to a Property exceeds $200,000, and Section 3.20 (‘Taxes’B) the aggregate measure of such claims with respect to all of the Properties exceeds $900,000 (the "Threshold"), in which event Buyer's claim shall be limited to an amount equal to (x) the amount by which such aggregate exceeds the Threshold, plus (y) an amount equal to two-thirds of the Threshold, (iii) Transferors' aggregate liability for claims arising out of all Breaches (i.e., those described in clause (ii) above as well as all other Breaches) shall survive until not, in the expiration aggregate, exceed an amount equal to three percent (3%) of the applicable statute aggregate Price for all of limitations period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Sellers’ Authority’), 3.16 (‘Brokers’) and 4.2 (‘Buyer’s Authority’) and all covenants and agreements made Properties acquired by Buyer exclusive of the amounts of any party hereunder insurance proceeds actually received by Transferors which are to be performed after applied to Claims pursuant to Section 2.4(e), and (iv) Buyer shall have the right to deliver to Transferors Claim Notices with respect to any Breach discovered by Buyer prior to the Closing Date shall survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification with respect solely if such notice is delivered prior to the underlying representation and warranty remains available in accordance with the foregoing provisions of this Section 9.1(a) (including as extended pursuant to the first proviso hereof).
(b) Except for any Loss and Expense suffered by Buyer based on the breach of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) and Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers, Buyer shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense (as defined herein) suffered by Buyer subject to indemnification under Section 9.2(a) of this Agreement exceeds $100,000 (the “Threshold”). Once the Threshold has been reached, Buyer shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below for the aggregate amount of Loss and Expense suffered by Buyer, including any and all claims which individually or in the aggregate did not reach the ThresholdClosing Date. Notwithstanding the foregoing, with respect to a Claim Notice asserting a breach of the Threshold representation contained in Section 4.1(b)(vii), the following shall be substituted for the provisions of clause (ii) of this Section 4.4(b): (ii) Buyer shall not apply to make any adjustments under Section 1.6, any Loss and Expense suffered by Buyer based claim on any account of a breach of any the representation or and warranty contained in Section 3.17 (‘Environmental Matters’4.1(b)(vii) or Section 3.20 (‘Taxes’) or resulting from fraud or willful misconduct by Sellers or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ maximum aggregate liability to Buyer for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss Property unless and Expense shall be $7.7 million (until the “Cap”); provided that the Cap shall not apply to any Loss and Expense suffered by Buyer based on any breach aggregate measure of any representation or warranty contained in Section 3.17 (‘Environmental Matters’), Section 3.18 (‘Circulation’) or resulting from fraud or willful misconduct by Sellers or any covenants and agreements made by any party hereto which are to be performed after the Closing Date. Except with regard to compensation for such claims paid to third parties, no indemnifying party shall have any liability to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits.
(d) Except for equitable remedies (including, without limitation, injunctive relief) and in the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of Buyer and Seller, as the case may be, from and after the Closing Date with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under this Agreement or any of the transactions contemplated hereby shall be solely in accordance with, and limited by, the indemnification provisions set forth in this Article IX.all
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