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 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, Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment 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 (‘Authority Relative to the Agreement’), 3.21 (‘Brokers’), 4.2 (‘Authority 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 suffered by Buyer and/or GateHouse Media subject to indemnification under Section 9.2(a) of this Agreement exceeds $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 Buyer and/or GateHouse Media, in 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 $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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 the 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 Agreement.
Appears in 1 contract
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 18 months thereafter July 15, 2015 (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 3.16 3.17 (‘Environmental Matters’), Section 3.19 3.18 (‘TaxesCirculation’) and Section 3.20 (‘Investment RepresentationsTaxes’) 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 (‘Authority Relative to the AgreementSellers’ Authority’), 3.21 3.16 (‘Brokers’), ) and 4.2 (‘Authority Relative to the Agreement’) and 4.8 (‘BrokersBuyer’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 (as defined in Section 9.2) suffered by Buyer based on the breach of any representation or warranty contained in Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 $1,000,000 100,000 (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 Buyer and/or GateHouse MediaBuyer, including any and all claims which individually or in excess of 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 and GateHouse Media based on any breach of any representation or warranty contained in , Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 $11.5 million 1,000,000 (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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 the partiesBuyer 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 AgreementArticle IX.
Appears in 1 contract
Survival; Limitations. (a) The Subject to Section 13.3(b) and Section 13.3(c): Non-Fundamental Representations (other than the representations and warranties set forth in Section 5.10) of each Seller and/or Company set forth herein and in the other Transaction Documents (including the corresponding representations and warranties given in the Closing Certificate) and the indemnity in Section 13.2(g) shall survive Closing and terminate on the Final Holdback Release Date; the representations and warranties set forth in Section 5.10 (including the corresponding representations and warranties given in the Closing Certificate) shall survive Closing and terminate on the date that is thirty (30) days after the expiration of the parties contained statutes of limitations applicable to such matters; Fundamental Representations of each Seller and/or Company set forth herein and in the other Transaction Documents (including the corresponding representations and warranties given in the Closing Certificate) shall survive Closing and terminate on the date that is thirty (30) days after the expiration of the statutes of limitations applicable to such matters; the covenants and agreements of each Party to be performed on or made prior to Closing shall terminate on the date that is twelve (12) months after the Closing Date; the covenants and agreements of each Seller or Purchaser to be performed after Closing shall survive the Closing and terminate when fully performed (other than in the case of the Sellers’ Representative, the covenants in Section 13.2, or in the case of Purchaser, the covenants in Section 13.1, in each case, which shall terminate on the date the applicable representations, warranties and covenants that is subject to indemnification thereunder); the indemnity in Section 13.2(f) with respect to the Specified Liabilities set forth in subparts (a), (b) and (e) of the definition of “Specified Liabilities” shall terminate on the Final Holdback Release Date, and with respect to the Specified Liabilities set forth in subparts (f) and (g) and (h) of the definition of “Specified Liabilities” shall terminate on the date that is thirty (30) days after the expiration of the statutes of limitations applicable to such matters, and with respect to the Specified Liabilities set forth in subparts (c) and (d) of the definition of “Specified Liabilities” shall terminate on the date that is thirty-six (36) months after the Closing Date; the other indemnification or reimbursement rights of the Purchaser Group in Section 13.2 shall survive the Closing and terminate on the termination date of each respective representation, warranty, covenant, or agreement of any Seller or Company, as applicable, that is subject to indemnification thereunder; and the representations, and warranties of Purchaser set forth in this Agreement and the Purchaser Party Certificate shall survive Closing and terminate on the date that is thirty (30) days after the expiration of the statutes of limitations applicable to such matters; provided, however, there shall be no expiration or termination of any bona fide claim validly asserted pursuant to a valid Claim Notice pursuant to this Agreement shall be deemed with respect to have been made on the date hereof and on the Closing Datesuch a representation, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending 18 months thereafter (the “Survival Period”); provided that if on warranty, covenant, or agreement 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) shall survive until the expiration termination date of the applicable statute of limitations survival period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Authority Relative to the Agreement’), 3.21 (‘Brokers’), 4.2 (‘Authority 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)thereof.
(b) Except As a condition to making any claims for any Loss indemnification, defense, or to be held harmless under this Article 13, the Party seeking indemnification must deliver to the Other Party a valid Claim Notice pursuant to this Agreement prior to the expiration or termination date of the applicable survival period (if any) thereof or the date it is otherwise required to be delivered hereunder. All rights of each member of the Purchaser Group or the Seller Group to indemnification and Expense (as defined in reimbursement under Section 9.2) suffered by Buyer based 13.2 or Section 13.1, respectively, shall terminate and expire on the breach earlier to occur of the termination date of each respective representation, warranty, covenant, or agreement, as applicable, for which any representation member of the Purchaser Group or warranty contained in Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications, Buyer and/or GateHouse Media shall not be the Seller Group is entitled to indemnification under this Agreement or reimbursement hereunder, except in each case as to matters for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense suffered by Buyer and/or GateHouse Media subject to indemnification under Section 9.2(a) of this Agreement exceeds $1,000,000 (the “Threshold”). Once the Threshold which a specific written Claim Notice has been reachedvalidly delivered to the Other Party, Buyer as applicable, on or before the earlier of such termination date or the date otherwise required to be delivered hereunder or the date the Purchaser Group or the Seller Group has received indemnification and/or GateHouse Media shall be entitled to full indemnification reimbursement from Sellers pursuant to Section 9.2(a) below for the Other Party, as applicable, in an aggregate amount of Loss and Expense suffered by Buyer and/or GateHouse Media, in excess of equal to 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing DateApplicable Indemnity Cap.
(c) Sellers’ Subject to Section 14.11 and ▇▇▇▇▇▇ Communication’s maximum aggregate liability Section 13.3(c)(iii), and notwithstanding anything to Buyer the contrary contained elsewhere in this Agreement after Closing:
(i) neither Purchaser nor any member of the Purchaser Group shall be entitled to indemnity or reimbursement:
(A) for Damages relating to or arising out of any individual event, matter or occurrence that members of the Purchaser Group are entitled to indemnity pursuant to Section 13.2(c) with respect to breaches of Non-Fundamental Representations or Section 13.2(d) with respect to breaches of Non-Fundamental Representations (other than the representations and GateHouse Media warranties set forth in Section 5.10) unless and until the amount of such Damages exceeds the Individual Threshold (it being agreed that the Individual Threshold represents a threshold and not a deductible);
(B) for indemnification claims any Damages that Purchaser Group is entitled to indemnity and reimbursement under Section 9.2(a13.2(c) with respect to breaches of Non-Fundamental Representations or Section 13.2(d) with respect to breaches of Non-Fundamental Representations (other than the representations and warranties set forth in Section 5.10) unless the aggregate amount of all such Damages for which Sellers would be responsible thereunder exceeds two percent (2%) of the Unadjusted Purchase Price (and then only to the extent such Damages exceed two percent (2%) of the Unadjusted Purchase Price);
(C) for aggregate Damages that Purchaser Group is entitled to indemnity and reimbursement under Section 13.2 in excess of the Holdback Amount (such amount, the “Non-Specified Liabilities Damage Cap”); provided, however, in no event shall the limitation set forth in this Agreement Section 13.3(c)(i)(C) apply to any Damages with respect to any Loss breaches of any Fundamental Representations of any Seller or Company, breaches of representations and Expense shall be $11.5 million warranties of any Seller or Company set forth in Section 5.10 or any indemnity obligations under Section 13.2(a), Section 13.2(b), Section 13.2(e) or Section 13.2(f); and
(D) under this Agreement or any other Transaction Document for aggregate Damages in excess of the Adjusted Purchase Price (such amount, the “Overall Indemnity Cap”); provided that .
(ii) Subject to Article 12 and Section 14.11, the Cap aggregate liability of Purchaser (and Company after Closing) under this Agreement shall not apply exceed the Adjusted Purchase Price.
(iii) Notwithstanding anything to any Loss and Expense suffered by Buyer and GateHouse Media based on any breach the contrary in this Agreement, nothing in this Agreement will limit the liability of any representation or warranty contained a Party for Fraud.
(iv) The liability of Sellers’ Representative under Section 13.2(e) shall be subject to the limitations set forth in Section 3.16 (‘Environmental Matters’3.2(j), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 (includingEach Seller, without limitation, injunctive relief) Company and in the absence of fraud, the parties hereto Purchaser each acknowledge and agree that except as expressly set forth in Article 12 or under Section 14.16, the sole and exclusive remedy payment of the partiesmoney, as limited by the case may beterms of this Agreement, from and after the Closing Date shall be adequate compensation for breach of any representation, warranty, covenant or agreement contained herein or for any other claim arising in connection with or with respect to any Loss the transactions contemplated by this Agreement and Expense whatsoever Purchaser, Company and each Seller hereby waive any and all claims for breach rights to rescind, reform, cancel, terminate, revoke or liability under void this Agreement or any of the transactions contemplated hereby hereby; provided, however, each Party shall have the non-exclusive right to specific performance under Section 14.16 and other equitable remedies available at law or equity (including injunctive relief) for the breach or failure of the Other Party to perform its obligations hereunder required to be solely in accordance with, and limited by, the indemnification provisions set forth in this Agreementperformed after Closing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Matador Resources Co)
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 18 months thereafter Parties hereto agree that (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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’i) and Section 3.20 (‘Investment 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 Articles 3A and 4 shall survive for the applicable statute of limitations; (‘Authority Relative to ii) the Agreement’), 3.21 (‘Brokers’), 4.2 (‘Authority Relative to the Agreement’) and 4.8 (‘Brokers’) and all covenants and agreements made by any party hereunder contained herein which are to be performed after the Closing Date shall survive without time limitlimitation, with (iii) the exception representations and warranties in Sections 3.12 and 3.22 shall survive for three (3) years, (iv) the representations and warranties in Section 3.11 shall survive for eighteen (18) months, (v) the representations and warranties in Section 3.9 shall survive for thirty (30) months, and (vi) all other representations and warranties shall survive for twelve (12) months, following the Closing Date (subject, in the case of Sections 9.2(aclauses (iii), (iv) and 9.3(a)(v) and (vi) hereof, which shall only remain operative and in full force and effect as long as indemnification to any applicable shorter statutes of limitation with respect to the underlying representation subject matter thereof). Any claim with respect to a breach of representations and warranty remains available warranties must be made in accordance with the foregoing provisions of this Section 9.1(a) (including as extended pursuant a writing to the first proviso hereof)Indemnifying Party within the survival period specified for such representations and warranties.
(b) Except Sellers shall have no obligation to indemnify the Seller Indemnified Persons for any Loss and Expense Damages pursuant to Section 10.1(a) or (as defined in Section 9.2b) suffered by Buyer based on the hereof (except with respect to a breach of any representation or warranty the representations contained in Section 3.16 (‘Environmental Matters’3.A.2 hereof), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications, Buyer and/or GateHouse Media shall not be entitled to indemnification under this Agreement except for any indemnification claim under Section 9.2(a) until Damages in the aggregate Loss in excess of Two Hundred and Expense suffered by Buyer and/or GateHouse Media subject to indemnification under Section 9.2(aFifty Thousand Dollars ($250,000) of this Agreement exceeds $1,000,000 the ("Floor") provided, however, that if Damages in the “Threshold”). Once aggregate exceed the Threshold has been reachedFloor, Buyer and/or GateHouse Media the Sellers shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below indemnify the Seller Indemnified Persons only for the aggregate amount of Loss and Expense suffered by Buyer and/or GateHouse Media, all such Damages in excess of the ThresholdFloor. Notwithstanding In no event shall Sellers, in the foregoingaggregate, have any obligation to indemnify the Threshold shall not apply Seller Indemnified Persons for Damages pursuant to any adjustments under Section 1.6, any Loss and Expense suffered by Buyer and GateHouse Media based on any 10.1(a) or (b) hereof (except with respect to a breach of any representation or warranty the representations contained in , Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’3.A.2 hereof) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after in an amount in excess of $25,000,000 in the Closing Dateaggregate.
(c) Sellers’ and ▇▇▇▇▇▇ Communication’s maximum aggregate liability The amount of any indemnification required to Buyer and GateHouse Media for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss and Expense be paid by Sellers hereunder shall be $11.5 million (the “Cap”); provided that the Cap shall not apply to reduced by any Loss and Expense suffered tax benefit received by Buyer and GateHouse Media based on any breach of any representation or warranty contained in Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 directly as a result 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 the parties, as the case may be, from and after the Closing Date with respect Damages giving rise to any Loss and Expense whatsoever and any and all claims a claim 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 Agreementindemnification.
Appears in 1 contract
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 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, Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment 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 (‘Authority Relative to the Agreement’), 3.21 (‘Brokers’), 4.2 (‘Authority 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 suffered by Buyer and/or GateHouse Media subject to indemnification under Section 9.2(a) of this Agreement exceeds $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 Buyer and/or GateHouse Media, in 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 $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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 the 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 Agreement.Section
Appears in 1 contract
Sources: Asset Purchase Agreement
Survival; Limitations. (a) The representations, warranties, covenants and agreements of the Sellers, the Company and the Buyer contained in this Agreement (including the Schedules and exhibits attached hereto and the certificates delivered pursuant hereto) will survive the Closing but only to the extent specified in this Section 10.3.
(i) The representations and warranties of the parties Sellers, the Company and the Buyer contained in or made pursuant to this Agreement shall be deemed to have been made (including the Schedules and exhibits attached hereto and the certificates delivered pursuant hereto) will survive for a period ending on the date hereof and on 12-month anniversary of the Closing Date; provided, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending 18 months thereafter however, that (the “Survival Period”); provided that if on or prior to A) the expiration date for any Claim relating to a breach of the Survival Period, a notice of claim for indemnification shall have been given or inaccuracy 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, set forth in the first and second sentences of Section 3.16 4.1 (‘Environmental Matters’Existence; Validity and Enforceability), Section 3.19 4.2 (‘Taxes’Title to Shares), Section 4.5 (Brokers), Section 5.1 (Existence and Good Standing), the first sentence of Section 5.2 (Validity and Enforceability), Section 5.3 (Capitalization of the Company, the Subsidiary and the Korean JV), Section 5.26 (Brokers), Section 6.2 (Existence and Good Standing), the first sentence of Section 6.3 (Validity and Enforceability) and Section 3.20 6.6 (‘Investment Brokers) (collectively, the “Fundamental Representations’”) shall survive until will be the seven-year anniversary of the Closing Date; (B) the expiration date for any Claim relating to the breach of or inaccuracy in the representations and warranties set forth in Section 5.12 (Intellectual Property) and Section 5.22 (Environmental and Asbestos Matters) will be the two-year anniversary of the Closing Date; (C) the expiration date for any Claim relating to a breach of or inaccuracy in the representations and warranties set forth in Section 5.9 (Taxes) will be 30 days after the expiration of the applicable statute of limitations period plus 90 days (including any applicable extensions); and the representations and warranties contained (D) any Claim pending on any applicable expiration date for which a notice has been given in Sections 3.2 (‘Authority Relative to the Agreement’accordance with Section 10.4(a) or Section 10.4(b), 3.21 as applicable, on or before such expiration date may continue to be asserted and indemnified against until finally resolved. Any claim for indemnification brought by an Indemnitee after the applicable expiration date will be void and invalid.
(‘Brokers’), 4.2 (‘Authority Relative to the Agreement’ii) and 4.8 (‘Brokers’) and all The covenants and agreements made by any party hereunder which are contained in this Agreement (including the Schedules and exhibits attached hereto and the certificates delivered pursuant hereto) that contemplate performance thereof prior to be performed after the Closing Date shall will terminate on the Closing Date. All covenants and agreements contained in this Agreement (including the Schedules and exhibits attached hereto and the certificates delivered pursuant hereto) that contemplate performance thereof following the Closing 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 respective terms.
(b) Except for Notwithstanding anything to the contrary contained in this Agreement, the rights of the Indemnitees are limited as follows:
(i) The Sellers will not have any Loss and Expense liability pursuant to Section 10.2(a)(i) or Section 10.2(b)(i) (as defined except in the case of Losses resulting from, arising out of or relating to inaccuracies in or breaches of the Fundamental Representations, the representations or warranties set forth in Section 9.2) suffered by Buyer based on the breach of any representation or warranty contained in Section 3.16 5.9 (‘Environmental Matters’Taxes), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) or resulting from fraud Fraud by the Company or willful misconduct by Sellers or ▇▇▇▇▇▇ Communicationsthe Sellers, Buyer and/or GateHouse Media shall for which the following limitation will not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(aapply) until the aggregate Loss and Expense suffered amount of all such Losses sustained by the Buyer and/or GateHouse Media subject to indemnification under Section 9.2(a) of this Agreement exceeds $1,000,000 1,983,750 (the “ThresholdBasket”). Once , and then only to the Threshold has been reached, Buyer and/or GateHouse Media shall be entitled extent of the excess up to full indemnification from a maximum of the then existing Indemnity Escrow Amount.
(ii) The Sellers will not have any liability with respect to any item or matter pursuant to Section 9.2(a10.2(a)(i) below or Section 10.2(b)(i) (except in the case of Losses resulting from, arising out of or relating to inaccuracies in or breaches of the Fundamental Representations, the representations or warranties set forth in Section 5.9 (Taxes), or Fraud by the Company or the Sellers, for which the following limitation will not apply) until the amount of Losses with respect to such item or matter exceeds $25,000, and if such amount is not exceeded, none of the Losses with respect to such item or matter will count toward satisfying the Basket.
(iii) Except for (A) Losses sustained as a result of a breach of or inaccuracy in any of the Fundamental Representations or Section 5.9 (Taxes), (B) Fraud by the Company or the Sellers, (C) Losses recoverable pursuant to Section 10.2(a)(v), or (D) following the Escrow Termination Date, Losses sustained as a result of a breach of or inaccuracy in any of the representations and warranties set forth in Section 5.12 (Intellectual Property) and Section 5.22 (Environmental and Asbestos Matters), the Buyer Indemnitees’ sole source of payment or indemnification for any claims under this Agreement shall be the Indemnity Escrow Amount held by the Escrow Agent under the Escrow Agreement and the Buyer Indemnitees shall not have any right to indemnification from any Seller or any successor or assignee thereof; provided, that, with respect to clause (D) above, following the Escrow Termination Date, the Buyer Indemnitees shall not have any right to payment from any Seller or any successor or assignee thereof in excess of the aggregate amount of Loss the Indemnity Escrow Amount finally determined to be released to the Sellers.
(iv) The right of a Buyer Indemnitee to indemnification for Losses under this Agreement shall in all cases be recovered first from the Indemnity Escrow Amount and Expense suffered by Buyer and/or GateHouse Mediathen, following the release or exhaustion of the Indemnity Escrow Amount, from the Sellers (in accordance with the Seller Pro Rata Portions) or the breaching Seller, as applicable, subject to the limitations contained in this Article X.
(v) Except in the case of Fraud, in no event shall any Seller or any successor or assignee thereof have any liability hereunder in excess of the Thresholdportion of the Purchase Price actually received by such Seller under Article II (which amount, for the avoidance of doubt, shall include such Seller’s Seller Pro Rata Portions of the Indemnity Escrow Amount and Holdback Amount).
(vi) The Seller Indemnitees’ and the Buyer Indemnitees’ right to indemnification pursuant to Section 10.1 and Section 10.2, respectively, will be reduced by the amount actually received from a third party (including an insurance company), with respect to the settlement or resolution of a claim for which the Seller Indemnitees or the Buyer Indemnitees, as the case may be, were entitled to indemnification hereunder. Notwithstanding The Buyer shall use reasonable efforts to pursue recovery from such third parties (and under all insurance policies) and the foregoingBuyer shall remit to the Sellers any such third party proceeds that are paid to any of the Buyer Indemnitees with respect to any Losses for which any of the Buyer Indemnitees has been previously compensated pursuant to Section 10.2. For the avoidance of doubt, in no event shall the Seller Indemnitees or the Buyer Indemnitees be required to pursue recovery from any third party (including an insurance company) prior to seeking and receiving indemnification hereunder.
(vii) The Indemnitees’ 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 any of the Buyer Indemnitees or their Affiliates by reason of the related Losses in or before the taxable year in which the Losses occur.
(viii) The Buyer Indemnitees’ right to indemnification pursuant to Section 10.2 on account of any Losses will be reduced by the amount of any reserve reflected on the Company Financial Statements established for the general category of items or matters similar in nature to the specific items or matters giving rise to such Loss.
(ix) The Buyer Indemnitees are not entitled to indemnification pursuant to Section 10.2 to the extent the Buyer was compensated therefor pursuant to Section 2.3.
(x) Except in the case of a breach of or inaccuracy in any of the representations or warranties in Section 5.22 or Fraud by the Company or the Sellers, the Threshold shall Buyer Indemnitees are not apply entitled to indemnification for any adjustments Losses incurred from, arising out of or based upon any Asbestos Use, and no Buyer Indemnitee will pursue any claim under Section 1.6, this Agreement or otherwise against the Sellers for indemnification under any Loss and Expense suffered by Buyer and GateHouse Media based on theory of liability related to the Asbestos Use.
(xi) Except to the extent (A) attributable to any breach of any representation or warranty contained in , Section 3.16 (‘Environmental Matters’Sections 5.9(e), Section 3.19 (‘Taxes’5.9(m)(ii), 5.9(m)(iii), 5.9(m)(v) or (B) any amount paid by the Buyer pursuant to Section 3.20 (‘Investment Representations’11.10, the Sellers will not have any liability pursuant to Sections 10.2(a)(i) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications or 10.2(a)(v)(C) with respect to any indemnification claim Tax or Losses related to covenants and agreements made by Taxes for any party hereto which are to be performed taxable period or portion thereof that begins after the Closing Date.
(cxii) Sellers’ and ▇▇▇▇▇▇ Communication’s maximum aggregate liability to The Buyer and GateHouse Media for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss and Expense shall be $11.5 million (the “Cap”); provided that the Cap Indemnitees 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications or any covenants and agreements made by any party hereto which are be entitled to be performed after compensated more than once for 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 profitssame Loss.
(dxiii) Except The Indemnitees are not entitled to indemnification for enforcement lost income, revenues or profits, multiples of the Note or equitable remedies (includingearnings damages, without limitationdiminution of value, injunctive relief) punitive damages, exemplary damages, incidental damages, consequential damages, special damages and in the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of the 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 Agreementindirect damages.
Appears in 1 contract
Sources: Stock Purchase Agreement (Watts Water Technologies 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 18 twelve (12) months thereafter after the Closing Date (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 3.16 3.17 (‘Environmental Matters’), Section 3.19 ) and 3.18 (‘Taxes’) and Section 3.20 (‘Investment RepresentationsCirculation’) 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 (‘Authority Relative to the AgreementSellers’ Authority’), 3.21 3.16 (‘Brokers’), ) and 4.2 (‘Authority Relative to the Agreement’) and 4.8 (‘BrokersBuyer’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 (as defined in Section 9.2) suffered by Buyer based on the breach of any representation or warranty contained in Section 3.16 3.17 (‘Environmental Matters’), Section 3.19 (‘TaxesEnvironmental’) and Section 3.20 3.18 (‘Investment RepresentationsCirculation’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 and/or Section 9.2(a) of the Utica Asset Purchase Agreement exceeds $1,000,000 500,000 (the “Threshold”). Once the Threshold has been reached, Buyer and/or GateHouse Media shall be entitled to full indemnification from Sellers the Gannett Parties pursuant to Section 9.2(a) below for the aggregate amount of any additional Loss and Expense suffered by Buyer and/or GateHouse Media, in excess of the ThresholdBuyer. 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 3.16 3.17 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 3.18 (‘Investment RepresentationsCirculation’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Communication’s maximum aggregate liability to Buyer and GateHouse Media for indemnification claims under Section 9.2(a) of this Agreement and/or Section 9.2(a) of the Utica Asset Purchase Agreement with respect to any Loss and Expense shall be $11.5 41 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 3.16 3.17 (‘Environmental Matters’), Section 3.19 3.18 (‘TaxesCirculation’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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) Notwithstanding any other provision of this Agreement to the contrary, Sellers shall have no obligation to defend, indemnify or hold harmless Buyer for any Loss and Expense related to or arising out of any Environmental Law with regard to Item 9 of Schedule 3.17 (and any required remediation relating thereto) to the extent GANSAT is prevented from completing its obligations under the Site Access Agreement due to Buyer’s breach of or failure to comply with the terms of the Site Access Agreement.
(e) 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 the partiesBuyer 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 AgreementArticle IX.
Appears in 1 contract
Survival; Limitations. (a) The (i)The representations and warranties of the parties Sellers and the Buyer contained in or made pursuant to this Agreement shall be deemed to have been made on (other than 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 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, Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) shall survive until the expiration of the applicable statute of limitations period plus 90 days Excluded Representations and the representations and warranties contained in Sections 3.2 Section 7.5 and Section 7.7) will survive for a period ending on the 18-month anniversary of the Closing Date (‘Authority Relative to the Agreement’“General Expiration Date”), 3.21 ; (‘Brokers’), 4.2 ii) the Excluded Representations will survive until the earlier of (‘Authority Relative to A) the Agreement’expiration of the statute of limitations applicable thereto or (B) five years after the Closing Date; (iii) the representations and 4.8 warranties contained in Section 7.5 will survive until the expiration of 60 days following the statute of limitations applicable thereto; and (‘Brokers’iv) the representations and all covenants and agreements made by any party hereunder which are to be performed warranties contained in Section 7.7 will survive until three years after the Closing Date shall survive without time limit(the survival periods set forth in subsections (ii)-(iv), together with the exception General Expiration Date, the “Expiration Date”); provided, however, that any Claim pending on any Expiration Date for which a Claims Notice has been given on or before such Expiration Date may continue to be asserted and indemnified against until finally resolved. The covenants and agreements of Sections 9.2(a) the Sellers and 9.3(a), which shall only remain operative and the Buyer contained in full force and effect as long as indemnification with respect to this Agreement will survive after the underlying representation and warranty remains available Closing Date 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 Notwithstanding anything to the contrary contained in this Article 10, the Sellers will not have any Loss liability pursuant to Section 10.2(a), Section 3.2(6) and Expense Section 3.2(7) (as defined in Section 9.2) suffered by Buyer based on other than pursuant to the breach of any representation or warranty Excluded Representations, the representations and warranties contained in Section 3.16 7.5 and the representations and warranties contained in Section 7.7, for which the following limitation will not apply) (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications, Buyer and/or GateHouse Media shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(athe “Threshold/Capped Liabilities”) until the aggregate Loss and Expense suffered amount of all such Losses incurred by the Buyer and/or GateHouse Media subject to indemnification under Section 9.2(a) of this Agreement exceeds $1,000,000 C$780,000 (the “Threshold”). Once , in which case the Threshold has been reached, Buyer and/or GateHouse Media shall Sellers will be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below jointly and severally liable for all such Losses in respect of the aggregate amount of Loss and Expense suffered by Buyer and/or GateHouse Media, Threshold/Capped Liabilities in excess of the Threshold. Notwithstanding ; provided, however, that the foregoing, Sellers’ maximum liability for Losses in respect of the Threshold Threshold/Capped Liabilities shall not apply to any adjustments exceed the amount remaining in escrow 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications or to any indemnification claim related to covenants and agreements the Escrow Agreement at the time each applicable Claim is first made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ and ▇▇▇▇▇▇ 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 $11.5 million (the “Cap”); provided that . For clarity, the Threshold and the Cap shall only apply to the Threshold/Capped Liabilities and shall not apply to any Loss other indemnification obligations of Sellers in this Agreement, including pursuant to Section 10.2(b) to Section 10.2(f) (other than Losses pursuant to Section 3.2(6) and Expense suffered by Buyer Section 3.2(7) with respect to which the Threshold shall apply), and GateHouse Media based on any breach of any representation or warranty pursuant to Section 10.1 with respect to the SHARE AND ASSET PURCHASE AGREEMENT Excluded Representations, the representations and warranties contained in Section 3.16 (‘Environmental Matters’), 7.5 and the representations and warranties contained in Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 profits7.7.
(dc) Except for enforcement of The Sellers’ and the Note or equitable remedies Buyer’s right to indemnification pursuant to Section 10.1 and Section 10.2, respectively, will be reduced by the amount paid by a third party (including, without limitation, injunctive relief) and in an insurance company), or paid by such third party to another for the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy account or benefit of the partiesSellers or the Buyer, as the case may be, with respect to the settlement or resolution of a claim for which the Sellers were or the Buyer was, as the case may be, entitled to indemnification hereunder. The Buyer shall, in good faith, pursue recovery from any such third parties and after under all insurance policies available to it concurrently with seeking indemnification under this Article 10. The Buyer shall remit to the Sellers any such insurance or other third party proceeds that are paid to the Buyer with respect to Losses for which the Buyer has been previously compensated pursuant to Section 10.2.
(d) No Claim may be made if and to the extent that such Loss occurs as a result of any Law not in force as of the Closing or taking effect retroactively.
(e) The Buyer is not entitled to indemnification pursuant to Section 10.2 to the extent that such matter was included or accounted for as a liability in the final calculation of Closing Working Capital or as a negative amount in the final calculation of Closing Cash.
(f) 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 the Subsidiaries’ consolidated books and records as of the Closing Date with respect established for the general category of items or matters similar in nature to any Loss and Expense whatsoever and any and all claims for breach the specific items or liability under this Agreement or any of the transactions contemplated hereby matters giving rise to such Loss.
(g) No party shall be solely in accordance with, and limited by, entitled to be compensated more than once for the indemnification provisions set forth in this Agreementsame Loss.
Appears in 1 contract
Survival; Limitations. Notwithstanding (a) The representations and warranties the making of this Agreement, (b) any examination made by or on behalf of the parties contained in Parties hereto, (c) the Closing hereunder, and (d) the subsequent dissolution or made pursuant liquidation of any of the Parties to this Agreement shall be deemed to have been made on Agreement, the date hereof respective representations, warranties, covenants, agreements and on indemnities of the Closing DateParties contained herein or in any Schedule, Exhibit, certificate or other document delivered pursuant hereto or in connection herewith shall survive the Closing Date and shall remain operative and in full force and effect for the period ending 18 months thereafter following periods (as applicable, the “Survival PeriodPeriods”); 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 ): (i) the representations and warranties contained inmade in Sections 6.1 and 7.1, Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) shall survive until the expiration of the applicable statute of limitations period plus 90 days and for the representations and warranties contained in Sections 3.2 (‘Authority Relative to underlying cause of action;(ii) the Agreement’), 3.21 (‘Brokers’), 4.2 (‘Authority Relative to the Agreement’) and 4.8 (‘Brokers’) and all covenants and agreements made by any party hereunder which are required to be performed under Sections 9.1(c) and 9.1(g), shall survive for a period of two (2) years after the Closing Date Date; (iii) the covenants and agreements under Section 9.2, which shall survive without time limit, with for a period of five (5) years after the exception of Sections 9.2(aClosing Date; (iv) the covenants and 9.3(aagreements under Section 9.1(a)(i), 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 survive for a period of this Section 9.1(aten (10) (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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 suffered by Buyer and/or GateHouse Media subject to indemnification under Section 9.2(a) of this Agreement exceeds $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 Buyer and/or GateHouse Media, in 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed years after the Closing Date.
; and (cv) Sellers’ all representations, warranties, covenants, agreements and ▇▇▇▇▇▇ Communication’s maximum aggregate liability to Buyer and GateHouse Media for indemnification claims under Section 9.2(aindemnities of the Parties that are not otherwise identified in clauses (i) of this Agreement with respect to any Loss and Expense shall be $11.5 million through (iv) above (collectively, the “CapGeneral Covenants”); provided that the Cap ) shall not apply to any Loss and Expense suffered by Buyer and GateHouse Media based on any breach survive for a period of any representation or warranty contained in Section 3.16 eighteen (‘Environmental Matters’), Section 3.19 (‘Taxes’18) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications or any covenants and agreements made by any party hereto which are to be performed months after the Closing Date. Except with regard Subject to compensation the limitations set forth in Sections 6.20 and 14.15, if Purchaser determines that Seller has defaulted on, or breached or violated any of its covenants, representations or warranties contained in this Agreement or otherwise defaulted in its obligations under this Agreement in any manner and such default is not cured within ten (10) business days following written notice from Purchaser, then Purchaser shall have the right to pursue an action against Seller for claims paid the actual damages (excluding consequential, speculative and punitive damages) incurred by Purchaser. Any action that is not brought by a party prior to third partiesthe conclusion of the applicable Survival Period shall thereafter be barred; provided that if a party delivers to the other party prior to the conclusion of the applicable Survival Period a written notice (i) stating its intention to file a legal action against the other party, no indemnifying and (ii) setting forth in reasonable detail the grounds for such legal action, then such 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.
additional thirty (d30) Except for enforcement calendar days following the conclusion of the Note or equitable remedies (includingapplicable Survival Period in which to file, without limitation, injunctive relief) and in serve upon the absence of fraudother party, the parties hereto acknowledge and agree that the sole and exclusive remedy of the 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 complaint in accordance with, and limited by, the indemnification provisions set forth in this Agreementsuch legal action.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dialysis Corp of America)
Survival; Limitations. (a) The Subject to Section 13.3(b) and Section 13.3(c): (i) Non-Fundamental Representations (other than the representations and warranties set forth in Section 5.10 and Section 5.39(j)) of each Seller and/or Company set forth herein and in the other Transaction Documents (including the corresponding representations and warranties given in the Closing Certificate) and the indemnity in Section 13.2(g) shall survive Closing and terminate on the Final Holdback Release Date; (ii) the representations and warranties set forth in Section 5.10 and Section 5.39(j) (including the corresponding representations and warranties given in the Closing Certificate) shall survive Closing and terminate on the date that is thirty (30) days after the expiration of the parties contained statutes of limitations applicable to such matters; (iii) Fundamental Representations of each Seller and/or Company set forth herein and in the other Transaction Documents (including the corresponding representations and warranties given in the Closing Certificate) shall survive Closing and terminate on the date that is thirty (30) days after the expiration of the statutes of limitations applicable to such matters; (iv) the covenants and agreements of each Party to be performed on or made prior to Closing shall survive Closing and terminate on the date that is twelve (12) months after the Closing Date; (v) the covenants and agreements of each Seller or Purchaser to be performed after Closing shall survive the Closing and terminate when fully performed (other than (A) in the case of the Sellers’ Representative, the covenants in Section 13.2, or (B) in the case of Purchaser, (y) the covenants in Section 13.1, in each case, which shall terminate on the date the applicable representations, warranties and covenants that is subject to indemnification thereunder and (z) the covenants in Section 13.1(f) shall survive Closing and terminate on the date that is thirty (30) days after the expiration of the statutes of limitations applicable to such matters); (vi) the indemnity in Section 13.2(f) with respect to the Specified Liabilities set forth in subparts (a), (b) and (e) of the definition of “Specified Liabilities” shall survive Closing and terminate on the Final Holdback Release Date; (vii) the indemnity in Section 13.2(f) with respect to the Specified Liabilities set forth in subparts (f), (g) and (h) of the definition of “Specified Liabilities” shall survive Closing and terminate on the date that is thirty (30) days after the expiration of the statutes of limitations applicable to such matters; (viii) the indemnity in Section 13.2(f) with respect to the Specified Liabilities set forth in subparts (c), (d) and (i) of the definition of “Specified Liabilities” shall survive Closing and terminate on the date that is thirty-six (36) months after the Closing Date; (ix) the indemnity in Section 13.2(f) with respect to the Specified Liabilities set forth in subpart (j) of the definition of “Specified Liabilities” shall survive Closing and terminate on the date that is thirty (30) days after the expiration of the statutes of limitations applicable to such matters; (x) the indemnity in Section 13.2(h) as to the Specified Matters shall survive Closing and terminate on the date that is thirty (30) days after the expiration of the statutes of limitations applicable to such matters; (xi) the other indemnification or reimbursement rights of the Purchaser Group in Section 13.2 shall survive the Closing and terminate on the termination date of each respective representation, warranty, covenant, or agreement of any Seller or Company, as applicable, that is subject to indemnification thereunder; and (xii) the representations, and warranties of Purchaser set forth in this Agreement and the Purchaser Party Certificate shall survive Closing and terminate on the date that is thirty (30) days after the expiration of the statutes of limitations applicable to such matters; provided, however, there shall be no expiration or termination of any bona fide claim validly asserted pursuant to a valid Claim Notice pursuant to this Agreement shall be deemed with respect to have been made on the date hereof and on the Closing Datesuch a representation, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending 18 months thereafter (the “Survival Period”); provided that if on warranty, covenant, or agreement 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) shall survive until the expiration termination date of the applicable statute of limitations survival period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Authority Relative to the Agreement’), 3.21 (‘Brokers’), 4.2 (‘Authority 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)thereof.
(b) Except As a condition to making any claims for any Loss indemnification, defense, or to be held harmless under this Article 13, the Party seeking indemnification must deliver to the Other Party a valid Claim Notice pursuant to this Agreement prior to the expiration or termination date of the applicable survival period (if any) thereof or the date it is otherwise required to be delivered hereunder. All rights of each member of the Purchaser Group or the Seller Group to indemnification and/or reimbursement under Section 13.2 or Section 13.1, respectively, shall survive Closing and Expense (as defined in Section 9.2) suffered by Buyer based terminate and expire on the breach earlier to occur of (i) the termination date of each respective representation, warranty, covenant or agreement, as applicable, for which any representation member of the Purchaser Group or warranty contained in Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications, Buyer and/or GateHouse Media shall not be the Seller Group is entitled to indemnification under this Agreement or reimbursement hereunder, except in each case as to matters for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense suffered by Buyer and/or GateHouse Media subject to indemnification under Section 9.2(a) of this Agreement exceeds $1,000,000 (the “Threshold”). Once the Threshold which a specific written Claim Notice has been reachedvalidly delivered to the Other Party, Buyer as applicable, on or before the earlier of such termination date or the date otherwise required to be delivered hereunder or (ii) the date the Purchaser Group or the Seller Group has received indemnification and/or GateHouse Media shall be entitled to full indemnification reimbursement from Sellers pursuant to Section 9.2(a) below for the Other Party, as applicable, in an aggregate amount of Loss and Expense suffered by Buyer and/or GateHouse Media, in excess of equal to 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing DateApplicable Indemnity Cap.
(c) Sellers’ Subject to Section 14.11 and ▇▇▇▇▇▇ Communication’s maximum Section 13.3(c)(iii), and notwithstanding anything to the contrary contained elsewhere in this Agreement after Closing:
(i) neither Purchaser nor any member of the Purchaser Group shall be entitled to indemnity or reimbursement:
(A) for Damages relating to or arising out of any individual event, matter or occurrence that members of the Purchaser Group are entitled to indemnity pursuant to Section 13.2(c) with respect to breaches of Non-Fundamental Representations or Section 13.2(d) with respect to breaches of Non-Fundamental Representations (other than the representations and warranties set forth in Section 5.10 and Section 5.39(j)) unless and until the amount of such Damages exceeds the Individual Threshold (it being agreed that the Individual Threshold represents a threshold and not a deductible);
(B) for any Damages that Purchaser Group is entitled to indemnity and reimbursement under Section 13.2(c) with respect to breaches of Non-Fundamental Representations or Section 13.2(d) with respect to breaches of Non-Fundamental Representations (other than the representations and warranties set forth in Section 5.10 and Section 5.39(j)) unless the aggregate liability to Buyer and GateHouse Media amount of all such Damages for indemnification claims under Section 9.2(awhich Sellers would be responsible thereunder exceeds two percent (2%) of the Unadjusted Purchase Price (and then only to the extent such Damages exceed two percent (2%) of the Unadjusted Purchase Price);
(C) for aggregate Damages that Purchaser Group is entitled to indemnity and reimbursement under Section 13.2 in excess of the Holdback Amount (such amount, the “Non-Specified Liabilities Damage Cap”); provided, however, in no event shall the limitation set forth in this Agreement Section 13.3(c)(i)(C) apply to any Damages with respect to any Loss breaches of any Fundamental Representations of any Seller or Company, breaches of representations and Expense shall be $11.5 million warranties of any Seller or Company set forth in Section 5.10 or Section 5.39(j) or any indemnity obligations under Section 13.2(a), Section 13.2(b), Section 13.2(e), Section 13.2(f) or Section 13.2(h); and
(D) under this Agreement or any other Transaction Document for aggregate Damages in excess of the Adjusted Purchase Price (such amount, the “Overall Indemnity Cap”); provided that .
(ii) Subject to Article 12 and Section 14.11, the Cap aggregate liability of Purchaser (and Company after Closing) under this Agreement shall not apply exceed the Adjusted Purchase Price.
(iii) Notwithstanding anything to any Loss and Expense suffered by Buyer and GateHouse Media based on any breach the contrary in this Agreement, nothing in this Agreement will limit the liability of any representation or warranty contained a Party for Fraud.
(iv) The liability of Sellers’ Representative under Section 13.2(e) shall be subject to the limitations set forth in Section 3.16 (‘Environmental Matters’Section 3.2(j), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 (includingEach Seller, without limitation, injunctive relief) Company and in the absence of fraud, the parties hereto Purchaser each acknowledge and agree that except as expressly set forth in Article 12 or under Section 14.16, (i) the sole and exclusive remedy payment of the partiesmoney, as limited by the case may beterms of this Agreement, from and after shall be adequate compensation for the Closing Date breach of any representation, warranty, covenant or agreement contained herein or for any other claim arising in connection with or with respect to any Loss the transactions contemplated by this Agreement and Expense whatsoever (ii) Purchaser, Company and each Seller hereby waive any and all claims for breach rights to rescind, reform, cancel, terminate, revoke or liability under void this Agreement or any of the transactions contemplated hereby hereby; provided, however, each Party shall have the non-exclusive right to specific performance under Section 14.16 and other equitable remedies available at law or equity (including injunctive relief) for the breach or failure of the Other Party to perform its obligations hereunder required to be solely in accordance with, and limited by, the indemnification provisions set forth in this Agreementperformed after Closing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Matador Resources Co)
Survival; Limitations. (a) The Subject to Section 13.3(b) and Section 13.3(c): (i) Non-Fundamental Representations (other than the representations and warranties set forth in Section 5.10 and Section 5.17(c)) of each Seller and/or Subject Company Group set forth herein and in the other Transaction Documents (excluding the Registration Rights Agreement and the Escrow Agreement, but including the corresponding representations and warranties given in the Closing Certificate) shall survive Closing and terminate on the Second Holdback Release Date; (ii) the representations and warranties set forth in Section 5.10 (including the corresponding representations and warranties given in the Closing Certificate) and the indemnity in Section 13.2(d) shall survive Closing and terminate on the date that is sixty (60) days after the expiration of the statutes of limitations (after giving effect to any waiver, mitigation or extension thereof) applicable to such matters; (iii) the representations and warranties in Section 5.17(c) shall terminate at Closing; (iv) Fundamental Representations of each Seller and/or Subject Company Group set forth herein and in the other Transaction Documents (including the corresponding representations and warranties given in the Closing Certificate) shall survive Closing and terminate upon expiration of the applicable statutes of limitation; (v) the covenants and agreements of each Seller and/or Subject Company Group to be performed on or prior to Closing shall survive Closing and terminate on the Second Holdback Release Date; (vi) the covenants and agreements of each Seller to be performed after Closing shall survive the Closing and terminate when fully performed (other than the covenants in Section 13.2, which shall survive the Closing and terminate on the date of the termination of the applicable representations, warranties, covenants and/or indemnities that are covered by Section 13.2); (vii) the indemnity in Section 13.2(e) (A) with respect to clause (d) of the definition of “Specified Liabilities” shall survive the Closing indefinitely, (B) with respect to clauses (a), and (b) of the definition of “Specified Liabilities” shall survive the Closing and terminate on the thirty-six (36) month anniversary of the Closing Date, (C) with respect to clauses (c), (e) and (g) of the definition of “Specified Liabilities” shall survive the Closing and terminate on the twenty-four (24) month anniversary of the Closing Date, and (D) with respect to all other “Specified Liabilities” shall survive the Closing and terminate on the fifteen (15) month anniversary of the Closing Date; and (viii) the covenants, representations and warranties of Purchaser set forth in this Agreement and the parties contained in Purchaser Certificate and the covenants of Subject Company Group to be performed after Closing shall survive the Closing indefinitely; provided, however, there shall be no expiration or made termination of any bona fide claim asserted pursuant to a Claim Notice pursuant to this Agreement shall be deemed with respect to have been made on the date hereof and on the Closing Datesuch a representation, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending 18 months thereafter (the “Survival Period”); provided that if on warranty, covenant or agreement 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) shall survive until the expiration termination date of the applicable statute of limitations survival period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Authority Relative to the Agreement’), 3.21 (‘Brokers’), 4.2 (‘Authority 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)thereof.
(b) Except Subject to Section 14.11 and notwithstanding anything to the contrary contained elsewhere in this Agreement after Closing:
(i) neither Purchaser nor any member of the Purchaser Group shall be entitled to indemnity or reimbursement from either Seller under this Agreement:
(A) for any Loss Damages relating to or arising out of any individual event, matter or occurrence that Purchaser Group is entitled to indemnity and Expense reimbursement for pursuant to Section 13.2(c) with respect to breaches of Non-Fundamental Representations, unless and until the amount of such Damages for such individual event, matter or occurrence exceeds the Individual Indemnity Threshold (it being agreed that the Individual Indemnity Threshold represents a threshold and not a deductible);
(B) for any Damages that Purchaser Group is entitled to indemnity and reimbursement for under Section 13.2(c) with respect to breaches of Non-Fundamental Representations in excess of the Individual Indemnity Threshold, unless and until the aggregate amount of all such Damages for which Sellers would be responsible under Section 13.2(c) exceeds one and three-quarters of a percent (1.75%) of the Unadjusted Purchase Price, collectively as defined to all Sellers (and then only to the extent such Damages exceed one and three-quarters of a percent (1.75%) of the Unadjusted Purchase Price);
(C) for any Damages that Purchaser Group is entitled to indemnity and reimbursement for under Section 13.2(c) with respect to breaches of Non-Fundamental Representations, to the extent the aggregate Damages that Purchaser Group is entitled to indemnity and reimbursement for under Section 13.2(c) exceed the Holdback Amount (but then only to the extent of such excess); provided, however, in no event shall the limitations set forth in this Section 13.3(b)(i)(A) through Section 13.3(b)(i)(C) apply to any Damages with respect to (x) any breaches of either Sellers’ Fundamental Representations or the representations and warranties set forth in Section 9.25.10, or (y) suffered by Buyer based on the breach of any representation or warranty contained in indemnity obligations under Section 3.16 (‘Environmental Matters’13.2(a), Section 3.19 13.2(b), Section 13.2(d); and
(‘Taxes’D) and Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 suffered by Buyer and/or GateHouse Media subject to indemnification under Section 9.2(a) of this Agreement exceeds $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 Buyer and/or GateHouse Media, Damages in excess of an amount equal to such Sellers’ Percentage Share 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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ Communications or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing DateUnadjusted Purchase Price.
(c) Sellers’ Subject to Article 12 and ▇▇▇▇▇▇ Communication’s maximum aggregate Section 14.11, the liability of the Purchaser Parties (and each Subject Company after Closing) under this Agreement shall not exceed an amount equal to Buyer and GateHouse Media for indemnification claims under Section 9.2(athe amount that is one hundred percent (100%) of this Agreement with respect to any Loss and Expense shall be $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 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 profitsUnadjusted Purchase Price.
(d) Except for enforcement of the Note or equitable remedies (includingEach Seller, without limitation, injunctive relief) Subject Company Group and in the absence of fraud, the parties hereto each Purchaser Party each acknowledge and agree that except as expressly set forth in Article 12, (1) the sole and exclusive remedy payment of the partiesmoney, as limited by the case may beterms of this Agreement shall be adequate compensation for breach of any representation, from and after the Closing Date warranty, covenant or agreement contained herein or for any other claim arising in connection with or with respect to any Loss the transactions contemplated by this Agreement and Expense whatsoever (2) the Purchaser Parties, Subject Company Group and each Seller hereby irrevocably waive any and all claims for breach rights to rescind, reform, cancel, terminate, revoke or liability under void this Agreement or any of the transactions contemplated hereby hereby; provided, however, each Party shall have the non-exclusive right to specific performance and other equitable remedies available at law or equity (including injunctive relief) for the breach or failure of the Other Party to perform its obligations hereunder required to be performed after Closing.
(e) Notwithstanding anything herein to the contrary but subject to Section 13.3(b), the rights of each member of the Purchaser Group to indemnification (and each Seller’s obligations) under Section 13.2 (as limited by the terms hereof) shall be solely in accordance withsatisfied first (A) from the Holdback Amount pursuant to Section 13.7 (on an aggregate basis and without regard to which Seller is responsible for the applicable indemnification obligation), until the Holdback Amount has been reduced to $0, and limited bysecond (B) by the applicable Seller, the indemnification provisions set forth who shall make such payment in this Agreementcash.
Appears in 1 contract
Sources: Securities Purchase Agreement (Devon Energy Corp/De)
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 18 twelve (12) months thereafter after the Closing Date (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 3.16 3.17 (‘Environmental Matters’), Section 3.19 ) and 3.18 (‘Taxes’) and Section 3.20 (‘Investment RepresentationsCirculation’) 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 (‘Authority Relative to the AgreementSellers’ Authority’), 3.21 3.16 (‘Brokers’), ) and 4.2 (‘Authority Relative to the Agreement’) and 4.8 (‘BrokersBuyer’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 (as defined in Section 9.2) suffered by Buyer based on the breach of any representation or warranty contained in Section 3.16 3.17 (‘Environmental Matters’), Section 3.19 (‘TaxesEnvironmental’) and Section 3.20 3.18 (‘Investment RepresentationsCirculation’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 and/or Section 9.2(a) of the RNH Asset Purchase Agreement exceeds $1,000,000 500,000 (the “Threshold”). Once the Threshold has been reached, Buyer and/or GateHouse Media shall be entitled to full indemnification from Sellers Gannett pursuant to Section 9.2(a) below for the aggregate amount of any additional Loss and Expense suffered by Buyer and/or GateHouse Media, in excess of the ThresholdBuyer. 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 3.16 3.17 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 3.18 (‘Investment RepresentationsCirculation’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Communication’s maximum aggregate liability to Buyer and GateHouse Media for indemnification claims under Section 9.2(a) of this Agreement and/or Section 9.2(a) of the RNH Asset Purchase Agreement with respect to any Loss and Expense shall be $11.5 41 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 3.16 3.17 (‘Environmental Matters’), Section 3.19 3.18 (‘TaxesCirculation’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or ▇▇▇▇▇▇ 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 the partiesBuyer 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 AgreementArticle IX.
Appears in 1 contract