Survival of Representations and Covenants. (a) The representations, warranties, and certifications contained in this Agreement shall not merge on Closing and, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date. (b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following: (i) the time limits contained in Subsection 6.3(a) as applicable; (ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful; (iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and (iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable. (c) It is agreed that, notwithstanding any other provision of this Agreement: (i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction; (ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5; (iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and (iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 2 contracts
Sources: Agreement of Purchase and Sale (GTWY Holdings LTD), Agreement of Purchase and Sale (Gateway Casinos & Entertainment LTD)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications agreements contained herein shall survive (without limitation): (i) the Closing and the sale of the Specified Assets to the Purchaser; (ii) any sale or other disposition of any or all of the Specified Assets by the Purchaser; and (iii) the dissolution or liquidation of any party to this Agreement. Except as set forth in this Agreement Section 9.1(c), all of said representations, warranties, covenants and obligations shall not merge on Closing andsurvive without limitation as to time, unless the covenant or agreement specifies a term, in which such covenant or agreement shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice expiration of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Datespecified term.
(b) Notwithstanding The representations, warranties, covenants and obligations of the foregoing provisions Seller , and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of this Section any information furnished to, or any other provisions of this Agreement investigation made by or any Closing Documentsknowledge of, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim Indemnitees or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicabletheir Representatives.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence a "Claim Notice" relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the Seller a written notice stating that such Indemnitee believes that there is or has been a possible Breach of such representation or warranty and obtaining financing for containing (i) a brief description of the transactions contemplated circumstances supporting such Indemnitee's belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach.
(d) For purposes of this Agreement, each statement or other item of information set forth in the Disclosure Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and warranty made by the Seller in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Electric Tractor Corp.), Asset Purchase Agreement (Electric Tractor Corp.)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications obligations of each party to this Agreement shall survive: (i) the Closing and the Asset Sale; (ii) any sale or other disposition of any or all of the Assets by the Purchaser; and (iii) the dissolution of any party to this Agreement. Except as set forth in Section 9.1(c), all of said representations and warranties shall remain in full force and effect and shall survive until April 1, 2004 (the “Expiration Date”). The covenants and obligations contained in this Agreement shall not merge on which by their terms are required to be performed after the Closing and, shall survive until performed or satisfied.
(b) The representations, warranties, covenants and obligations of the expiry Seller, and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of one any information furnished to, or any investigation made by or any knowledge of, any of the Indemnitees or any of their Representatives.
(1c) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification representations and warranties in this Agreement shall give expire on the Expiration Date; provided, however, that if a Claim Notice (as defined below) relating to any representation or warranty set forth in Section 2 is given to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim Seller on or prior to the last day Expiration Date, then, notwithstanding anything to the contrary contained in this Section 9.1(c), such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as each and every claim (including any indemnification claim asserted by any Indemnitee under Section 9.2) that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach of such representation or warranty has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of the Survival PeriodSeller and the Purchaser or by means of a final, irrespective non-appealable judgment issued by a court of whether competent jurisdiction.
(d) For purposes of this Agreement, a “Claim Notice” relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the subject matter Seller a written notice stating that such Indemnitee believes that there is or has been a possible Breach of such representation or warranty and containing (i) a brief description of the circumstances supporting such Indemnitee’s belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach. Failure to provide such Claim Notice (unless the Expiration Date shall have occurred before or after such date; and upon the expiry passed) shall not constitute a waiver of the Survival Period all such representationsSeller’s indemnity obligations hereunder and shall not limit or otherwise affect any Liability that the Seller may have to any Indemnitee, warranties, and certifications shall cease to have any effect except to the extent a written that the Seller is actually materially prejudiced thereby. No Claim has been previously given in Notice with respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach Breach of any representation and warranty means such of the Seller may be delivered after the Expiration Date.
(e) For purposes of this Agreement, each statement or other item of information set forth in the Seller Disclosure Schedule or in any update to the Seller Disclosure Schedule shall be deemed to be a representation and warranty is not true and accurate. “Material Value Reduction” means that, made by the Seller in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accuratethis Agreement.
Appears in 1 contract
Survival of Representations and Covenants. (a) Except as set forth in Subsection 6.1(c), the representations, warranties, covenants and obligations of each Party to this Agreement shall survive: (i) the execution and delivery of this Agreement and the sale of the Patents to Purchaser; (ii) any subsequent permitted sale or other disposition of any or all of the Patents by Purchaser; and (iii) the dissolution or liquidation of any Party to this Agreement.
(b) The representations, warranties, covenants and certifications contained obligations of Seller, and the rights and remedies that may be exercised by Purchaser, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any knowledge of, Purchaser or any of its Representatives.
(c) Except with respect to any willful misrepresentation or fraud by Seller in connection with this Agreement, in which case all of such applicable representations and warranties in this Agreement shall not merge on Closing and, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach fifth annual anniversary of the representationEffective Date, warranty, or certification, together with details thereof, within a reasonable time after becoming aware the representations and warranties set forth in Section 3 and Section 4 shall expire on the third annual anniversary of the Effective Date; provided, however, that if a Claim Notice (as defined in Subsection 6.1(d) below) relating to any material breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect violation of any breach of any representation, representation or warranty or certification made by such party set forth in this Agreement unless Notice of such Claim Section 3 is received by such party describing in detail the facts and circumstances with respect given to the subject matter of such Claim Seller on or prior to the last day third annual anniversary of the Survival PeriodEffective Date, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representationsthen, warranties, and certifications shall cease to have any effect except notwithstanding anything to the extent contrary contained in this Subsection 6.1(c), such representation or warranty shall not so expire, but rather shall remain in full force and effect until each and every claim has been fully and finally resolved, either by means of a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) settlement agreement executed on behalf of Seller and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect or by means of a breach final, non-appealable judgment issued by a court of competent jurisdiction.
(d) For purposes of this Agreement, a “Claim Notice” relating to a particular representation, warranty or indemnity from covenant shall be deemed to have been given if a Party, acting in good faith, delivers to the other party Party a written notice stating that it had actual knowledge was false the notifying Party believes that there is or untrue as has been a possible breach or violation of any representations, warranties or covenants of the Closing Dateother Party and containing (i) a brief description of the circumstances supporting the notifying Party’s belief that there is or has been such a possible breach or violation and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential damages that have arisen and may arise as a result of such possible breach or violation (the “Estimated Damages”).
(be) Notwithstanding the foregoing provisions of this Section If Purchaser delivers a Claim Notice to Seller regarding a material breach or any other provisions of this Agreement or any Closing Documents, the liability violation of any party representation or warranty set forth in Section 3 at any time before the last payment of the Purchase Price has been paid in accordance with Section 2.2, then Purchaser will be entitled to this Agreement withhold [...***...] an amount equal to the Estimated Damages (herein “Holdback Amount”) until such claim has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of Seller and Purchaser or by means of a final, non-appealable judgment issued by a court of competent jurisdiction. To clarify the Holdback Amount shall not exceed [...***...]. The amount of damages that Purchaser is entitled to receive as a result of the final resolution of such claims is referred to as the “Responsible Party”) after Closing in respect of any representationAward Amount.” If the Award Amount is less than the Holdback Amount, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall will be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) retain, and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have no further obligation to pay to Seller the right Award Amount, and Purchaser will pay to bring an action for damagesSeller the difference between the Holdback Amount and the Award Amount promptly after the resolution. If the Award Amount equals or exceeds the Holdback Amount, if anyPurchaser will be entitled to retain, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right no further obligation to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned pay to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determinationSeller, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateHoldback Amount.
Appears in 1 contract
Sources: Patent Purchase Agreement (Applied Micro Circuits Corp)
Survival of Representations and Covenants. (a) The representationsAll representations and warranties contained in this Agreement, warrantiesthe assignment documents described in Section 1.5(b)(i) and the Assumption Agreement shall survive the Closing Date and shall expire at 11:59 p.m. (Pacific Time) on the eighteen-month anniversary of the Closing Date and shall thereafter be of no further force or effect, except (i) the representations and warranties set forth in Sections 2.2, 2.6, 2.17, and certifications 3.2 shall expire on the expiration of the relevant statute of limitations, and (ii) to the extent required to enforce the parties' rights and obligations hereunder following the end of such period for any claims for which a Claim Notice (as defined below) has properly been made prior to the expiration of such period. All of the covenants, agreements and obligations of the parties contained in this Agreement, in the assignment documents described in Section 1.5(b)(i) and the Assumption Agreement shall survive (i) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the party or parties entitled to such performance or (ii) if not fully performed or fulfilled, until the expiration of the relevant statute of limitations. Notwithstanding anything in this Agreement to the contrary, if this Agreement is terminated pursuant to Section 8.1(c), (d) or (e), the representations and warranties contained in this Agreement shall not merge on Closing and, shall survive until the expiry thereafter be of one no further force or effect.
(1b) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision For purposes of this Agreement, no a "Claim Notice" relating to a particular representation or warranty or covenant shall be deemed to have been given if any Indemnified Party, acting in good faith, delivers to the Indemnifying Party a written notice stating that such Indemnified Party reasonably believes that there is or has been a possible Breach of such representation or warranty or covenant and containing (i) a brief description of the circumstances supporting such Indemnified Party's reasonable belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may be asserted arise as a direct or pursued against indirect result of such possible Breach.
(c) Notwithstanding that the accuracy and performance of only certain representations, warranties and covenants are conditions to the obligations of the parties hereto to consummate the transactions contemplated hereby, any party hereto, or any action, suit or other proceeding commenced or pursued, may pursue claims for or in indemnification with respect of any breach to Damages that arise from the Breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits covenant contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in regardless of whether the party asserting a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result claim for indemnification had knowledge of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject Breach prior to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateClosing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicis Pharmaceutical Corp)
Survival of Representations and Covenants. (a) The representationsAll representations and warranties contained in this Agreement are made as of the Effective Date and shall expire at 11:59 p.m. (Pacific Time) on the eighteenth-month anniversary of the Effective Date and shall thereafter be of no further force or effect, warrantiesexcept (i) the representations and warranties set forth in Sections 7.1, 7.2(a) and 8.1 shall expire on the expiration of the relevant statute of limitations, and certifications (ii) to the extent required to enforce the parties’ rights and obligations hereunder following the end of such period for any claims for which a Claim Notice (as defined below) has properly been made prior to the expiration of such period. All of the covenants, agreements and obligations of the parties contained in this Agreement shall survive (i) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the party or parties entitled to such performance or (ii) if not merge on Closing andfully performed or fulfilled, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach expiration of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware relevant statute of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Datelimitations.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence and obtaining financing for the transactions contemplated a “Claim Notice” relating to a particular representation or warranty or covenant shall be deemed to have been given if any Indemnified Party, acting in this Agreementgood faith, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up delivers to the Indemnifying Party a written notice stating that such Indemnified Party reasonably believes that there is or has been a possible Breach of such representation or warranty or covenant and containing (i) a brief description of the circumstances supporting such Indemnified Party’s reasonable belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the Deposit; and
(iv) for greater certainty, it is confirmed actual and potential Damages that reference to have arisen and may arise as a breach direct result of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accuratepossible Breach.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations and warranties made by Seller and Xenova in this Agreement (including without limitation the representations and warranties set forth in Sections 2 and 3), shall survive the Closing and shall expire either one (1) year after the Closing Date, for the representations in Sections 2 and 3 other than those contained in Sections 2.9 and 2.12 through 2.14, or three (3) years after the Closing Date for the representations contained in Sections 2.9 and 2.12 through 2.14 (the "Expiration Date"); provided, however, that if, at any time prior to the Expiration Date for a specific representation, any Indemnitee (acting in good faith) delivers to Seller a written notice alleging the existence of an inaccuracy in or other Breach of any of such representation and warranty and asserting a claim for recovery under Section 10.2 based on such alleged inaccuracy or other Breach, then the claim asserted in such notice shall survive the Expiration Date for such representation until such time as such claim is fully and finally resolved. All representations and warranties made by Purchaser shall terminate and expire as of the Closing, and any liability of Purchaser with respect to such representations and warranties shall thereupon cease.
(b) The representations, warranties, covenants and certifications contained in this Agreement obligations of Seller and Xenova, and the rights and remedies that may be exercised by the Indemnitees, shall not merge on Closing and, shall survive until the expiry be limited or otherwise affected by or as a result of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party heretoinformation furnished to, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification investigation made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day Knowledge of, any of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section Indemnitees or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicabletheir Representatives.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence each statement or other item of information set forth in the Disclosure Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and obtaining financing for the transactions contemplated warranty made by Seller and Xenova in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications contained in obligations of each party to this Agreement shall not merge on Closing andsurvive (without limitation): (i) the execution and delivery of this Agreement and the sale of the Purchased Assets to Purchaser; (ii) any subsequent sale or other disposition of any or all of the Purchased Assets by Purchaser; (iii) the liquidation and dissolution of the Seller; and (iv) the death of any Shareholder. All of said representations, warranties, covenants and obligations shall remain in full force and effect and shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received October 2, 1999; provided, however, that if a representation, Claim Notice relating to any representation or warranty or certification in this Agreement shall give Notice is given to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and Agent (as defined in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim Section 7.4) on or prior to October 2, 1999; then, notwithstanding anything to the last day contrary contained in this Section 7.1(a), such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as each and every claim (including any indemnification claim asserted by any Indemnitee under Section 7.2) that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach of such representation or warranty has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before Agent and Purchaser or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect by means of a breach final, non-appealable judgement issued by a court of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Datecompetent jurisdiction.
(b) Notwithstanding the foregoing provisions For purposes of this Section or any other provisions of this Agreement or any Closing DocumentsAgreement, the liability of any party a "CLAIM NOTICE" relating to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any a particular representation, warranty, covenant or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party obligation shall be subject deemed to have been given if any Indemnitee, acting in good faith, delivers to Agent or Seller a written notice stating that such Indemnitee believes that there is or has been a possible Breach of such representation, warranty, covenant or obligation and limited by the following:
containing (i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount a brief description of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.circumstances supporting such
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications contained in this Agreement obligations of the Seller shall survive (without limitation): (i) the Closing and the sale of the Specified Assets to the
(b) The representations, warranties, covenants and obligations of the Seller or Parent, and the rights and remedies that may be exercised by the Indemnitees, shall not merge on Closing and, shall survive until the expiry be limited or otherwise affected by or as a result of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party heretoinformation furnished to, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification investigation made by such party or any knowledge of, any of the Indemnitees or any of their Representatives.
(c) The representations and warranties set forth in this Agreement unless Sections 0 and 0 hereof shall expire on the first anniversary of the Closing Date; provided, however, that if a Claim Notice of such Claim (as defined below) relating to any representation or warranty set forth in Section 0 or 0 hereof is received by such party describing in detail the facts and circumstances with respect given to the subject matter of such Claim Seller or Parent, as the case may be, on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as first anniversary of the Closing Date, then, notwithstanding anything to the contrary contained in this Section 0, such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as each and every claim (including any indemnification claim asserted by any Indemnitee under Section 0 or Section 0 hereof) that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach of such representation or warranty has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of Parent or the Seller, Parent and the Purchaser, as the case may be, or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(bd) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence a “Claim Notice” relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the Seller or Parent, as the case may be, a written notice stating that such Indemnitee believes that there is or has been a Breach of such representation or warranty and obtaining financing for containing (i) a brief description of the transactions contemplated circumstances supporting such Indemnitee’s belief that there is or has been such a Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach.
(e) For purposes of this Agreement, each statement or other item of information set forth in the Disclosure Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and warranty made by the Seller in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Medical Technologies Inc/De)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications contained in this Agreement shall not merge on Closing and, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party obligations of each breach of party (including the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and Selling Stockholders) set forth in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, the Escrow Agreement, the Investment Agreement and the Registration Rights Agreement shall survive the Closing Date, and any subsequent Acquisition Transaction effected by or otherwise involving the Purchaser or the Company, to the extent provided in this Section 11.1(a). All representations and warranties (as well as covenants and obligations to be performed prior to the Closing Date) of the parties in this Agreement, the Escrow Agreement, the Investment Agreement and the Registration Rights Agreement shall terminate and have no Claim may be asserted further force or pursued against effect on the Indemnification Termination Date, unless earlier terminated pursuant to Section 10.1; PROVIDED, HOWEVER, that any party hereto, representation or any action, suit or other proceeding commenced or pursued, for warranty made herein or in respect of any the Escrow Agreement, the Investment Agreement or the Registration Rights Agreement, (i) the breach of any representationwhich resulted from the commission of fraud or an intentional misrepresentation or omission by a Selling Stockholder or (ii) which a Selling Stockholder knew was false when made (each such Selling Stockholder referred to in clause (i) and (ii) above, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances shall be referred to herein as a "RESPONSIBLE STOCKHOLDER"), shall, solely with respect to such Responsible Stockholder and in connection with such Responsible Stockholder's indemnification obligations under Section 11 hereof, terminate and have no further force or effect on the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as second anniversary of the Closing Date, and any covenants or obligations under this Agreement or any of the other Transactional Agreements to be performed after the Closing shall survive the Closing as required for the completion of such covenants or obligations.
(b) Notwithstanding The representations, warranties, covenants and obligations of the foregoing provisions respective parties, and the rights and remedies that may be exercised by any of this Section them, shall not be limited or otherwise affected by or as a result of any information furnished to, or any other provisions investigation made by, or the knowledge of, any of this Agreement the parties or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicabletheir respective representatives.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence although each statement or other item of information set forth in the Company Disclosure Schedule qualifies the specific representation and obtaining financing for warranty to which such information refers, all such statements and other items of information set forth in the transactions contemplated Company Disclosure Schedule shall be deemed to be a representation and warranty made by the Company in this Agreement.
(d) The representations, including without limitationwarranties, all commitment fees, lenders’ rate lock expenses covenants and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount obligations of the Deposit; and
Company or the Selling Stockholders in this Agreement or any other Transactional Agreement (ivother than the Employment and Non-Competition Agreements) are made to Purchaser and for greater certainty, it is confirmed that reference to a breach the benefit of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, each Indemnitee (as defined in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%Section 11.2(a) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accuratebelow).
Appears in 1 contract
Sources: Merger Agreement (Xoom Inc)
Survival of Representations and Covenants. 7.1.1 The covenants and obligations of the parties contained in this Agreement shall survive (ai) until fully performed or fulfilled, unless non-compliance with such covenants or obligations is waived in writing by the party or parties entitled to such performance or (ii) if not fully performed or fulfilled, until the expiration of the relevant statute of limitations.
7.1.2 Subject to Section 7.1.4 and except for the representations and warranties contained in Sections 3.5 and 3.10.6 (the “Excluded Representations”), (i) the representations and warranties set forth in Sections 3 and 4 shall expire twelve (12) months after the Execution Date if there is no Initial Effective Date, or twelve (12) months after Initial Effective Date or the applicable Second Effective Date, as the case may be, and (ii) the Excluded Representations shall survive until thirty (30) days after the expiration of the applicable statute of limitations relating thereto (in any case, as applicable, the “Expiration Date”); provided, however, that if a Claim Notice relating to any representation or warranty set forth in any of the provisions of Sections 3 or 4 is given to the Company or Purchaser, as the case may be, on or prior to the time and date of expiration for such representation or warranty, then, notwithstanding anything to the contrary contained in this Section 7.1 or any applicable statute of limitations (which the parties hereby waive), the expiration of such representation or warranty shall not effect the validity of any Claim expressly stated in any Claim Notice nor the asserting party’s rights to indemnification with respect to such Claim in accordance with this Section 7 until such Claim is finally resolved by the parties hereunder or by a court of competent jurisdiction and any amount payable hereunder are finally determined and paid. The representations, warranties, covenants and certifications contained in this Agreement obligations of each party, and the rights and remedies that may be exercised by an Indemnitee, shall not merge on Closing and, shall survive until the expiry be limited or otherwise affected by or as a result of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party heretoinformation furnished to, or any actioninvestigation made by or Knowledge of, suit the Indemnitee or any of their representatives. The parties recognize and agree that the representations and warranties also operate as bargained for promises and risk allocation devices and that, accordingly, any party’s Knowledge, shall not affect the right to indemnification or payment of Damages pursuant to this Section 7, or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim remedy based on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, covenants, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Dateobligations.
(b) Notwithstanding 7.1.3 The representations, warranties, covenants and obligations of each party, and the foregoing provisions rights and remedies that may be exercised by an Indemnitee, shall not be limited or otherwise affected by or as a result of this Section any information furnished to, or any other provisions of this Agreement investigation made by or Knowledge of, the Indemnitee or any Closing Documentsof their representatives. The parties recognize and agree that the representations and warranties also operate as bargained for promises and risk allocation devices and that, accordingly, any party’s Knowledge shall not affect the liability right to indemnification or payment of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or Damages pursuant to this Agreement Section 7, or in any Closing Document made by other remedy based on such Responsible Party shall be subject representations, warranties, covenants, and obligations.
7.1.4 Notwithstanding anything to and limited by the following:
(i) the time limits contrary contained in Subsection 6.3(a) Section 7.1, if either the Company or Purchaser commit any intentional misrepresentation or fraud related to any representation or warranty of the Company or Purchaser set forth in Sections 3 or 4, as applicable;
(ii) no Claim , then such representation or warranty shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000)not expire, the Purchaser but rather shall be entitled to recover the remain in full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) force and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable effect for an unlimited period of time (not regardless of whether any Claim Notice relating to exceed one hundred eighty (180) days after Notice thereof such representation or warranty is given) the Responsible Party shall be given a reasonable opportunity prior to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicabletime).
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation 7.1.5 For purposes of this Agreement, due diligence a “Claim Notice” relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the Company or Purchaser, as the case may be, a written notice stating that such Indemnitee believes that there is or has been a possible breach of such representation or warranty and obtaining financing for containing (i) a brief description of the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following circumstances supporting such Indemnitee’s belief that there is or has been such a possible breach (the Purchaser’s Condition Date (collectively, “Purchaser’s ExpensesClaim”) up to and (ii) a non-binding, reasonable preliminary estimate of the aggregate dollar amount of the Deposit; andactual and potential Damages that have arisen and may reasonably be expected to arise as a direct or indirect result of such possible breach.
(iv) for greater certainty7.1.6 For purposes of this Section 7, it is confirmed that reference each statement or other item of information produced and created by the Company pertaining to the Company, the Acquired Assets or the Leased Facilities contained in the Exhibits or Schedules shall be deemed to be a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in made by the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateCompany.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representationsAll representations and warranties contained in this Agreement, warrantiesthe assignment documents described in Section 1.5(b)(i) and the Assumption Agreement shall survive the Closing Date and shall expire at 11:59 p.m. (Pacific Time) on the eighteen-month anniversary of the Closing Date and shall thereafter be of no further force or effect, except (i) the representations and warranties set forth in Sections 2.2, 2.6, 2.17, and certifications 3.2 shall expire on the expiration of the relevant statute of limitations, and (ii) to the extent required to enforce the parties’ rights and obligations hereunder following the end of such period for any claims for which a Claim Notice (as defined below) has properly been made prior to the expiration of such period. All of the covenants, agreements and obligations of the parties contained in this Agreement, in the assignment documents described in Section 1.5(b)(i) and the Assumption Agreement shall survive (i) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the party or parties entitled to such performance or (ii) if not fully performed or fulfilled, until the expiration of the relevant statute of limitations. Notwithstanding anything in this Agreement to the contrary, if this Agreement is terminated pursuant to Section 8.1(c), (d) or (e), the representations and warranties contained in this Agreement shall not merge on Closing and, shall survive until the expiry thereafter be of one no further force or effect.
(1b) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision For purposes of this Agreement, no a “Claim Notice” relating to a particular representation or warranty or covenant shall be deemed to have been given if any Indemnified Party, acting in good faith, delivers to the Indemnifying Party a written notice stating that such Indemnified Party reasonably believes that there is or has been a possible Breach of such representation or warranty or covenant and containing (i) a brief description of the circumstances supporting such Indemnified Party’s reasonable belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may be asserted arise as a direct or pursued against indirect result of such possible Breach.
(c) Notwithstanding that the accuracy and performance of only certain representations, warranties and covenants are conditions to the obligations of the parties hereto to consummate the transactions contemplated hereby, any party hereto, or any action, suit or other proceeding commenced or pursued, may pursue claims for or in indemnification with respect of any breach to Damages that arise from the Breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits covenant contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in regardless of whether the party asserting a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result claim for indemnification had knowledge of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject Breach prior to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateClosing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Biomarin Pharmaceutical Inc)
Survival of Representations and Covenants. (a) The Purchaser agrees that all rights to indemnification or exculpation now existing in favor of the employees, agents, directors or officers of the Company (the "Company Indemnified Parties") as provided in its Articles of Incorporation or Bylaws of the Company, except to the extent limited by Section 12.3 hereof, shall continue in full force and effect for a period of six (6) years from the Closing Date; provided, however, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims. Any determination required to be made with respect to whether a Company Indemnified Party's conduct complies with the standards set forth in the Articles of Incorporation or Bylaws of the Company or otherwise shall be made by independent counsel selected by the Company Indemnified Party reasonably satisfactory to the Purchaser (whose fees and expenses shall be paid by the Purchaser).
(b) The representations, warranties, covenants and certifications contained obligations of each party set forth in this Agreement shall not merge on Closing and, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice Merger only to the extent provided in the sentence immediately following and shall remain operative and in full force and effect regardless of any investigation made by or information furnished to or on behalf of any other party hereto, any person controlling any such party or any of each breach of their officers or directors, whether prior to or after the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision execution of this Agreement, no Claim may be asserted and any subsequent Acquisition Transaction effected by or pursued against any party heretootherwise involving the Purchaser. Except in the case of fraud, or any actionall representations, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts warranties and circumstances with respect to the subject matter of such Claim on or prior to the last day covenants of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given parties in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any other Transactional Agreement shall terminate on the earlier of the first anniversary of the Closing DocumentsDate or ten days after the completion and delivery of Purchaser's audited financial statements for the year ending December 31, 1999 (the "INDEMNIFICATION TERMINATION DATE"). In the case of fraud, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party Indemnification Termination Date shall be subject to and limited by upon the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount expiration of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach applicable statute of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicablelimitations.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence although each statement or other item of information set forth in the Disclosure Schedule qualifies the representations and obtaining financing for the transactions contemplated in this Agreement, including without limitationwarranties, all commitment fees, lenders’ rate lock expenses such statements and legal fees incurred other items of information set forth in the Disclosure Schedule shall be deemed to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up qualify all applicable representations and warranties and to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to be a breach of any representation and warranty means such representation made by the Company under this Agreement
(d) The representations, warranties, covenants and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value obligations of the Subject Assets is at least two percent Company and the Selling Shareholders are made to the Purchaser and for the benefit of each Purchaser Indemnitee (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateas defined in Section 12.2 hereof.
Appears in 1 contract
Sources: Merger Agreement (Xoom Inc)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications contained obligations in this Agreement shall not merge on Closing and, shall survive until the expiry of one (1) year following the Closing Date (and the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach sale of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of Storybook Common Shares to Fulcrum and shall expire on the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as second anniversary of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documentsforegoing, the liability of any party if a Claim Notice (as defined below) relating to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, covenant or certification made by such Responsible Party in obligation is given to Mach▇▇▇ ▇▇ a Shareholder on or pursuant prior to this Agreement or in any the second anniversary of the Closing Document made by such Responsible Party shall be subject Date then, notwithstanding anything to and limited by the following:
(i) the time limits contrary contained in Subsection 6.3(a) as applicable;
(ii) no Claim Section 8.1(a), such representation or warranty shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant not so expire solely with respect to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all claim, but rather shall remain in full force and effect until such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) time as each and only if every claim specifically set forth in such Claim Notice has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of Fulcrum and Mach▇▇▇ ▇▇ a Shareholder, as the case may be, or Claims are successful;
(iii) if any breach by means of any such representationa final, warranty or certification or Surviving Covenant can be remedied within non-appealable judgment issued by a reasonable period court of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicablecompetent jurisdiction.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence a "Claim Notice" relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee (as defined below) acting in good faith, delivers to Mach▇▇▇ ▇▇ a Shareholder, as the case may be, a written notice stating that such Indemnitee believes that there is or has been a possible breach of a representation or warranty and obtaining financing for containing (i) a brief description, providing reasonable detail, of the transactions contemplated in circumstances supporting such Indemnitee's belief that there is or has been such a possible breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential damages that have arisen and may arise as a direct or indirect result of such possible breach.
(d) For purposes of this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount each statement or other item of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, information set forth in the Purchaser’s reasonable determinationStorybook Disclosure Schedule shall be deemed to be a representation, the fair market value warranty, covenant or obligation of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateMach▇▇▇ ▇▇ this Agreement.
Appears in 1 contract
Survival of Representations and Covenants. (a) Except as set forth in Section 8.1(b), the representations, warranties, covenants and obligations of each party to this Agreement shall survive (without limitation): (i) the Closing and the sale of the Specified Assets, and the ICMOSA Shares owned by UniMark, to Purchaser; (ii) any subsequent sale or other disposition of any or all of the Specified Assets or ICMOSA Shares by Purchaser; and (iii) the death, dissolution, winding-up or liquidation of any party to this Agreement. The representations, warranties, covenants and certifications contained in this Agreement obligations of UniMark, ICMOSA and FoodsSub, and the rights and remedies that may be exercised by the Indemnitees, shall not merge on Closing and, shall survive until the expiry be limited or otherwise affected by or as a result of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party heretoinformation furnished to, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification investigation made by such party or any knowledge of, any of the Indemnitees or any of their Representatives.
(b) The representations and warranties set forth in this Agreement unless Sections 2 and 3 shall expire 65 days after the Closing Date; provided, however, that
(i) if a Claim Notice of such Claim (as defined below) relating to any representation or warranty set forth in Section 2 is received by such party describing in detail the facts and circumstances with respect given to the subject matter of such Claim UniMark on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or date 65 days after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date., then, notwithstanding anything to the contrary contained in this Section
8.1 such representation or warranty shall not expire, but rather shall remain in full force and effect until such time as each and every claim (bincluding any indemnification claim asserted by any Indemnitee under Section 8.2) Notwithstanding the foregoing provisions of this Section that is based directly or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warrantyindirectly upon, or certification made that relates directly or indirectly to, any inaccuracy or alleged inaccuracy in such representation or warranty has been fully and finally resolved, either by such Responsible Party in means of a written settlement agreement executed on behalf of UniMark and Purchaser or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited means of a final, nonappealable judgment issued by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;a court of competent jurisdiction, and
(ii) no Claim shall be brought against if, on or prior to the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim Closing Date, ▇▇▇▇▇ ▇▇▇▇▇▇▇ or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach Jakes Jordaan has actual knowledge of any circumstance that constitutes or that has given rise or could be expected to give rise, directly or indirectly, to any inaccuracy in any representation or warranty set forth in Section 2, then such representationrepresentation or warranty shall not expire, warranty or certification or Surviving Covenant can be remedied within a reasonable but rather shall remain in full force and effect for an unlimited period of time (not regardless of whether any Claim Notice relating to exceed one hundred eighty (180) days after Notice thereof such representation or warranty is ever given) the Responsible Party ). For purposes of this Agreement, a "CLAIM NOTICE" relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to UniMark a reasonable opportunity to remedy any written notice stating that such breach, provided Indemnitee believes that there is or has been an inaccuracy in such breach is capable of being remedied representation or warranty and granting such opportunity does not, in the opinion containing (1) a brief description of the Initiating Partyspecific facts supporting such Indemnitee's good faith belief that there is or has been such an inaccuracy and (2) a non-binding, acting reasonably, adversely affect preliminary estimate of the Initiating Party; and
(iv) aggregate dollar amount of the provisions Damages that have arisen and may arise as a direct or indirect result of Subsection 6.3(a) and Section 6.5 if applicablesuch inaccuracy.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence each statement or other item of information set forth in the Disclosure Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and obtaining financing for the transactions contemplated warranty made jointly and severally by UniMark, ICMOSA and FoodsSub in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications agreements contained in this Agreement shall survive the Closing as follows: (a) the Seller Fundamental Representations and the Purchaser Fundamental Representations shall survive the Closing until the earlier of six (6) years following the Closing Date and the expiration of the applicable statute of limitations (each such applicable date, a “Fundamental Representation Survival Date”); (b) the Seller General Representations and the Purchaser General Representations shall survive the Closing until such date that is twelve (12) months after the Closing Date (the “General Representation Survival Date”); (c) the covenants and agreements of the Company and Seller that do not contemplate performance following the Closing contained in this Agreement shall not merge on Closing andsurvive the Closing; and (d) the covenants and agreements SET FORTH IN THIS AGREEMENT THAT BY THEIR TERMS ARE TO BE PERFORMED IN WHOLE OR IN PART AT OR AFTER THE CLOSING SHALL SURVIVE THE CLOSING TO THE EXTENT PROVIDED BY THEIR RESPECTIVE TERMS. WITHOUT LIMITING THE FOREGOING, shall survive until the expiry EXCEPT FOR (I) CLAIMS FOR FRAUD WITH RESPECT TO MAKING THE REPRESENTATIONS AND WARRANTIES SET FORTH IN Article II and Article III of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice (as qualified by the Seller Disclosure Schedule), (ii) claims for indemnification pursuant to and subject to the limitations of (x) Section 7.06(g) or (y) this Article XI and (iii) claims for specific performance or other party equitable remedies hereunder, no claim shall be brought or maintained by, or on behalf of, any Purchaser Waiving Parties against any Seller Indemnity Party, and no recourse shall be sought or granted against any of each them, by virtue of, or based upon, any alleged misrepresentation or inaccuracy in, or breach of, any of the representationrepresentations, warrantywarranties, covenants or certification, together with details thereof, within a reasonable time after becoming aware agreements of the breach and in any event not later than the last day of the Survival Period. Notwithstanding Company, Seller or any other provision of Person set forth or contained in this Agreement, no Claim may be asserted any certificate, instrument, opinion, agreement or pursued against any party heretoother document of the Company, Seller or any actionother Person delivered hereunder, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documentsthe Disclosure Schedules or the Transactions, the liability Business or the ownership, operation, management, use or control of the Business, any party to this Agreement (herein referred to as of the “Responsible Party”) after Closing in respect of any representation, warrantyassets, or certification made by such Responsible Party in any actions or pursuant to this Agreement omissions at, or in any Closing Document made by such Responsible Party shall be subject to prior to, the Closing. Purchaser acknowledges and limited by agrees that the following:
(i) the time limits agreements contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000)this Section 11.07, the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000Section 11.02(c) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out contained in Section 6.1, and in such event 4.08 are an integral part of the Deposit and all interest earned thereon shall be returned to the Purchaser, Transactions and the Vendor shall reimburse inducement of Seller to consummate the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateTransactions.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Covia Holdings Corp)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications contained obligations of each party shall survive the Closing, to the extent provided in this Agreement shall not merge on Closing and, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”Section 9.1(a). The party which has received a representation, warranty If the Seller or certification in this Agreement shall give Notice to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim Purchaser (i) had actual knowledge on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given Closing that it was in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a material breach of a representationrepresentation or warranty made by it, and (ii) allowed the Closing to occur, then the indemnification set forth in this Section 9 will not terminate as specified in the third sentence of this Section 9.1(a), but shall survive and continue indefinitely. All other representations and warranties (as well as covenants and obligations to be performed prior to the Closing Date) of the parties shall terminate on the earlier to occur of (i) six (6) months of the Closing Date and (ii) the expiration of the applicable statute of limitation period or periods legally applicable to them; provided, however, that if a Claim Notice relating to any representation or warranty or indemnity from is given to the other party on or prior to the date identified in clause (i) or (ii) above, as applicable, then, notwithstanding anything to the contrary contained in this Section 9.1(a), the representations or warranties shall not so expire, but rather shall remain in full force and effect until such time as all claims that it had actual knowledge was false or untrue as are based upon the same general set of facts are fully and finally resolved, either by means of a written settlement agreement executed on behalf of the Closing DateSeller and Purchaser or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(b) Notwithstanding The representations, warranties, covenants and obligations of the foregoing provisions respective parties, and the rights and remedies that may be exercised by any of this Section them, shall not be limited or otherwise affected by or as a result of any information furnished to, or any other provisions investigation made by or knowledge of, any of this Agreement the parties or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made their Representatives. Any investigation by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party persons shall be subject to for their own protection only and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim not affect or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim impair any right or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicablehereunder.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence each statement or other item of information set forth in the Disclosure Schedules shall be deemed to be a representation and obtaining financing for warranty of the transactions contemplated in Seller.
(d) For purposes of this Agreement, including without limitationa "Claim Notice" relating to a particular claim for indemnification shall be deemed to have been given if any applicable indemnitee, all commitment feesacting in good faith, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up delivers to the other party a written notice stating that such applicable indemnitee believes that it is entitled to indemnification hereunder and setting forth (i) a brief description of the circumstances supporting such Indemnitee's belief, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the Deposit; and
(iv) for greater certainty, it is confirmed Damages that reference to have arisen and may arise as a breach direct or indirect result of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accuratepossible claim.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications contained in this Agreement shall not merge on Closing and, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party obligations of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as shall survive for the “Responsible Party”) after Closing in respect of any representationone year period immediately following the Closing; provided, warrantyhowever, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled a Claim Notice relating to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification rights set forth in any of said Sections is given to the Seller on or Surviving Covenant can be remedied within a reasonable period of time (not prior to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion first anniversary of the Initiating PartyClosing Date, acting reasonablythen, adversely affect notwithstanding anything to the Initiating Party; andcontrary contained in this Section 4.1, such representation, warranty or rights shall not so expire, but rather shall remain in full force and effect until such time as each and every claim (including any indemnification claim asserted by any Indemnitee under Section 4.2) that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach of such representation or warranty or to such rights has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of the Seller and the Purchaser or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(ivb) The representations, warranties, covenants and obligations of each party hereto and the provisions rights and remedies that may be exercised by the Purchaser Indemnitees and the Seller Indemnitees, as the case may be, shall not be limited or otherwise affected by or as a result of Subsection 6.3(a) and Section 6.5 if applicableany information furnished to, or any investigation made by or any knowledge of, any of the Seller or Purchaser Indemnitees or any of their respective Representatives.
(c) It is agreed that, notwithstanding any other provision For purposes of this Agreement:, a "Claim Notice" relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the Purchaser or Seller, as the case may be, a written notice stating that such Indemnitee believes that there is or has been a Breach of such representation or warranty and containing a brief description of the circumstances supporting such Indemnitee's belief that there is or has been such a Breach.
(id) For purposes of this Agreement, each statement or other item of information set forth in the Purchaser Disclosure Schedule shall not have the right be deemed to terminate this Agreement as be a result of the breach by the Vendor of one or more representations representation and warranties warranty made by the Vendor Seller or the Purchaser, as the case may be, in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by and all of the Vendor of one or more Seller's and Purchaser's respective representations and warranties made by the Vendor contained in this Agreement that does not result in a Material Value Reduction, then shall be deemed modified by the Disclosure Schedule provided by the Purchaser shall not have any right to terminate this Agreement as a result of such breachor the Seller, but the Purchaser shall have the right to bring an action for damagesrespectively, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and extent provided in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateDisclosure Schedule.
Appears in 1 contract
Sources: Asset Purchase Agreement (Horizon Organic Holding Corp)
Survival of Representations and Covenants. (a) Subject to Section 13.1(c), the representations, warranties, covenants and obligations of each party to this Agreement shall survive (i) the Closing; (ii) any sale or other disposition of any or all of the Shares by Purchaser; and (iii) the death or dissolution of any party to this Agreement. All of such representations, warranties, covenants and obligations shall remain in full force and effect and shall survive indefinitely unless a shorter period of time is set forth expressly in Section 13.1(c).
(b) The representations, warranties, covenants and certifications contained in this Agreement obligations of Shareholders, Target Company, Purchaser and Surge and the rights and remedies that may be exercised by the Indemnitees, shall not merge on Closing andbe limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any knowledge of, any of the Indemnitees or any of their Representatives.
(c) Subject to Section 13.1(d), (i) all representations and warranties of Shareholders, Purchaser, Target Company and Surge shall survive until the expiry for a period of one (1) year (i.e., 12 calendar months) following the Closing Date (the “Survival Period”). The party which has received ; provided, however, that if a representation, Claim Notice (as defined below) relating to any representation or warranty or certification in this Agreement shall give Notice is given to the other indemnifying party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the applicable Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representationsthen, warranties, and certifications shall cease to have any effect except notwithstanding anything to the extent contrary contained in this Section 13.1(c), such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as such claim has been fully and finally resolved, either by means of a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) settlement agreement executed on behalf of Shareholders and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect or by means of a breach final, non-appealable judgment issued by a court of a representationcompetent jurisdiction.
(d) Notwithstanding anything to the contrary contained in Section 13.1(c), warranty if the indemnifying party had knowledge, on or indemnity from the other party that it had actual knowledge was false or untrue as of prior to the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party fact, event or circumstance that constitutes or that has given rise or could be expected to this Agreement (herein referred give rise, directly or indirectly, to as the “Responsible Party”) after Closing in respect any Breach of any representationrepresentation or warranty of the indemnifying party set forth in Article 5, warrantyin the case of Shareholders, Article 6 in the case of Purchaser, Article 7 in the case of Shareholders or Target Company, or certification made by Article 8 in the case of Surge, without disclosing such Responsible Party fact, event or circumstance, on the applicable Disclosure Schedule, then such representation or warranty shall not expire, but rather shall remain in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to full force and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable effect for an unlimited period of time (not regardless of whether any Claim Notice relating to exceed one hundred eighty (180) days after Notice thereof such representation or warranty is ever given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable).
(ce) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence a “Claim Notice” relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the indemnifying party a written notice stating that such Indemnitee believes that there is or has been a Breach of such representation or warranty and obtaining financing for containing (i) a description in reasonable detail of the transactions contemplated circumstances supporting such Indemnitee’s good faith belief that there is or has been such a Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such Breach.
(f) For purposes of this Agreement, each statement or other item of information set forth in any Disclosure Schedule shall be deemed to be a representation and warranty made in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 1 contract
Sources: Stock Purchase Agreement (Surge Global Energy, Inc.)
Survival of Representations and Covenants. (a) All representations, warranties, covenants and obligations in this Agreement will remain in full force and effect and will survive for a period of twelve (12) months following the Closing Date (with respect to the representations and warranties) and for the periods specified in this Agreement (with respect to the covenants and obligations); provided, however, that if a claim notice relating to any representation, warranty, covenant or obligation set forth in this Agreement is given timely and properly by the Party seeking indemnification on or prior to the applicable termination date, then, notwithstanding anything to the contrary contained in this Section 6.1(a), such representation, warranty, covenant or obligation will not so expire, but rather will remain in full force and effect solely to the extent of the matters in such claim notice until such time as each and every claim has been fully and finally resolved, by means of a written settlement agreement executed on behalf of the Sellers or the Representative (on behalf of the Sellers) on the one hand and Buyer on the other hand, or a final, non-appealable judgment issued by a court of competent jurisdiction, or as otherwise agreed to by Buyer and the Representative.
(b) The representations, warranties, covenants and certifications contained in this Agreement shall not merge on Closing and, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach obligations of the representationSellers, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of and the breach rights and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim remedies that may be asserted exercised by the Buyer Indemnitees, will not be limited or pursued against otherwise affected by or as a result of any party heretoinformation furnished to, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification investigation made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day knowledge of, any of the Survival PeriodBuyer Indemnitees or any of their representatives. “Buyer Indemnitees” means Buyer, irrespective of whether Buyer’s affiliates (including the subject matter of such Claim shall have occurred before or after such date; Company), and upon the expiry their respective officers, directors, employees, and advisors, and successors and assigns of the Survival Period all such representationsforegoing, warrantiesprovided, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representationhowever, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) Company will not be entitled to exercise any rights as applicable;
an Indemnitee prior to the Closing, and (ii) no Claim shall be brought against for the Vendor by the Purchaser until the aggregate avoidance of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000)doubt, the Purchaser shall Sellers will not be entitled deemed to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable“Buyer Indemnitees.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (ChromaDex Corp.)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications contained in this Agreement shall not merge on Closing and, obligations of the Seller shall survive until the expiry of one (1without limitation): (i) year following the Closing Date (and the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice sale of the Specified Assets to the Purchaser; and (ii) any sale or other party disposition of each breach any or all of the representationSpecified Assets by the Purchaser. Except as set forth in Section 10.1(c) hereof, warranty, or certification, together with details thereof, within a reasonable time after becoming aware all of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such said representations, warranties, covenants and certifications obligations shall cease to have any remain in full force and effect except to the extent and shall survive for a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(aperiod of twelve (12) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of months following the Closing Date.
(b) Notwithstanding The representations, warranties, covenants and obligations of the foregoing provisions Seller or Parent, and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of this Section any information furnished to, or any other provisions of this Agreement investigation made by or any Closing Documentsknowledge of, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim Indemnitees or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicabletheir Representatives.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more The representations and warranties made by set forth in Sections 3 and 4 hereof shall expire on the Vendor first anniversary of the Closing Date; provided, however, that if a Claim Notice (as defined below) relating to any representation or warranty set forth in Section 3 or 4 hereof is given to the Seller or Parent, as the case may be, on or prior to the first anniversary of the Closing Date, then, notwithstanding anything to the contrary contained in this AgreementSection 10.1(c), unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one such representation or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser warranty shall not have so expire, but rather shall remain in full force and effect until such time as each and every claim (including any right to terminate this Agreement as a result indemnification claim asserted by any Indemnitee under Section 10.2 or Section 10.3 hereof) that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach of such breachrepresentation or warranty has been fully and finally resolved, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach either by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result means of a Material Condition that results in a Material Value Reductionwritten settlement agreement executed on behalf of Parent or the Seller, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, Parent and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and as the Vendor shall reimburse the Purchaser for its reasonable and customary thirdcase may be, or by means of a final, non-party out appealable judgment issued by a court of pocket costs and expenses incurred in connection with its negotiation competent jurisdiction.
(d) For purposes of this Agreement, due diligence a “Claim Notice” relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the Seller or Parent, as the case may be, a written notice stating that such Indemnitee believes that there is or has been a Breach of such representation or warranty and obtaining financing for containing (i) a brief description of the transactions contemplated circumstances supporting such Indemnitee’s belief that there is or has been such a Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach.
(e) For purposes of this Agreement, each statement or other item of information set forth in the Disclosure Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and warranty made by the Seller in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representationsAll representations and warranties contained in this Agreement are made as of the Effective Date and shall expire at 11:59 p.m. (Pacific Time) on the eighteenth-month anniversary of the Effective Date and shall thereafter be of no further force or effect, warrantiesexcept (i) the representations and warranties set forth in Sections 7.1, 7.2(a) and 8.1 shall expire on the expiration of the relevant statute of limitations, and certifications (ii) to the extent required to enforce the parties' rights and obligations hereunder following the end of such period for any claims for which a Claim Notice (as defined below) has properly been made prior to the expiration of such period. All of the covenants, agreements and obligations of the parties contained in this Agreement shall survive (i) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the party or parties entitled to such performance or (ii) if not merge on Closing andfully performed or fulfilled, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach expiration of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware relevant statute of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Datelimitations.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence and obtaining financing for the transactions contemplated a "CLAIM NOTICE" relating to a particular representation or warranty or covenant shall be deemed to have been given if any Indemnified Party, acting in this Agreementgood faith, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up delivers to the Indemnifying Party a written notice stating that such Indemnified Party reasonably believes that there is or has been a possible Breach of such representation or warranty or covenant and containing (i) a brief description of the circumstances supporting such Indemnified Party's reasonable belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the Deposit; and
(iv) for greater certainty, it is confirmed actual and potential Damages that reference to have arisen and may arise as a breach direct result of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accuratepossible Breach.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications contained in obligations of each party to this Agreement shall not merge on survive: (i) the Closing andand the sale of the Assets to the Purchaser; (ii) any sale or other disposition of any or all of the Assets by the Purchaser; and (iii) the death or dissolution of any party to this Agreement, in each case for a period of six (6) months from the date of the Closing, provided that, the representations and warranties contained in Section 2.17 shall survive until the expiry of one (1) year following the Closing Date for a period of six (6) years.
(b) In the “Survival Period”). The party which has received event that a representation, warranty or certification in this Agreement shall give Claim Notice (as defined below) relating to the other party of each breach of the any representation, warranty, covenant or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against obligation is given to any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Periodapplicable survival period set forth in subsection (a) above, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representationsthen, warranties, and certifications shall cease to have any effect except notwithstanding anything to the extent a written Claim has been previously given contrary contained in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section 9.1, such representation or any other provisions of this Agreement or any Closing Documents, warranty shall not so expire with respect to the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicablespecific claim so asserted.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence a “Claim Notice” relating to a particular representation, warranty, covenant or obligation shall be deemed to have been given if any party, acting in good faith, delivers to the other party a written notice stating that such party believes that there is or has been a possible Breach of such representation, warranty, covenant or obligation and obtaining financing for containing (i) a brief description of the transactions contemplated circumstances supporting such party’s belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach.
(d) For purposes of this Agreement, each statement or other item of information set forth in the Disclosure Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and warranty made by the Seller in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integrated Surgical Systems Inc)
Survival of Representations and Covenants. (a) The covenants, obligations, and licenses of each party to this Agreement shall survive (without limitation): (i) the Closing and the sale of the Assets to Purchaser; (ii) any sale or other disposition of any or all of the Assets by Purchaser; and (iii) the death or dissolution of any party to this Agreement. All of said covenants and obligations shall remain in full force and effect and shall survive for an unlimited period of time.
(b) The representations and warranties of Seller shall expire on the first anniversary of the Closing Date (the “Expiration Date”); provided, however, that the representations and warranties of Seller in Sections 2.1 (Due Organization), 2.2 (Assets), 2.8 (Environmental and Safety Laws) and 2.10 (Authority; Binding Nature of Agreement) shall survive until the expiration of the applicable statute of limitations; provided, further, however, that if a Claim Notice (as defined below) relating to any representation or warranty of Seller is given to Seller on or prior to the Expiration Date, then, notwithstanding anything to the contrary contained in this Section 6.1(b), such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as each and every claim (including any indemnification claim asserted by any Indemnitee under Section 6.2) that is based upon, or that relates to, any breach or alleged breach of such representation or warranty has been fully and finally resolved.
(c) For purposes of this Agreement, a “Claim Notice” relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to Seller a written notice stating that such Indemnitee believes that there is or has been a breach of such representation or warranty and containing (i) a brief description of the circumstances supporting such Indemnitee’s belief that there is or has been such a breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a result of such possible breach.
(d) The representations, warranties, covenants and certifications contained in this Agreement obligations of Seller, and the rights and remedies that may be exercised by the Indemnitees, shall not merge on Closing and, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty be limited or certification in this Agreement shall give Notice to the other party of each breach of the representation, warranty, otherwise affected by or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one any information furnished to, or more representations and warranties any investigation made by the Vendor in this Agreementor any Knowledge of, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach Indemnitees or any of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accuratetheir Representatives.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representationsparties, warrantiesintending to modify any applicable statute of limitations, agree that (i) the representations and certifications warranties contained in Article 4 shall terminate and expire on the sixth (6th) anniversary of the Closing Date and (ii) the covenants and agreements contained in this Agreement shall not merge on intended to be fulfilled from and after the Closing and, shall survive until the expiry of one (1) year following the Closing Date in accordance with their terms and survive until fully performed (each such applicable termination and expiration date, the applicable “Survival PeriodDate”). The party which has received a representationAll other representations and warranties (other than those contained in Article 4), warranty and all covenants and agreements to be performed prior to or certification at the Closing in this Agreement or in any instrument, document or certificate delivered pursuant to this Agreement shall give Notice to the other party of each breach terminate effective as of the representationClosing and shall not survive the Closing for any purpose, warrantyand thereafter there shall be no liability on the part of, or certificationnor shall any claim be made by, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or of their respective Affiliates in respect thereof. The provisions of any breach and the limitation of any representation, warranty or certification made by such party remedies provided in this Agreement unless Notice of such Claim is received Section 7.01(a) were specifically bargained for between the parties hereto and were taken into account by such party describing the parties hereto in detail arriving at the facts Purchase Price. The parties hereto have voluntarily agreed to define their rights, liabilities and circumstances obligations with respect to the subject matter Contemplated Transactions exclusively in contract pursuant to the express terms and provisions of this Agreement. The parties hereto each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations and the parties hereto specifically acknowledge that no party hereto has any special relationship with another party hereto that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction.
(b) No claim may be made pursuant to the indemnification provisions contained in this Agreement, whether for indemnification in respect thereof or otherwise, unless written notice of such claim setting forth the alleged breach and resulting claimed Losses in reasonable detail is given to Seller (in the case of a claim by a Buyer Indemnified Person) or Buyer (in the case of a claim by a Seller Indemnified Person), as applicable, by the applicable Survival Date.
(c) If any Claim Notice (as defined below) is validly given in good faith in accordance with the terms of this Section 7.01 and Section 7.05 on or prior to the last day of applicable Survival Date, the Survival Period, irrespective of whether the subject matter of claims specifically set forth in such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the PurchaserNotice, and the Vendor claiming party’s rights hereunder with respect thereto, shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means survive until such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if time as such representation and warranty were true and accurateclaims are finally resolved.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications contained in obligations of each party to this Agreement shall not merge on survive (without limitation): (i) the Closing andand the sale of the Assets to the Purchaser; (ii) any sale or other disposition of any or all of the Assets by the Purchaser; and (iii) the death or dissolution of any party to this Agreement. All of said representations, warranties, covenants and obligations shall remain in full force and effect and shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach second anniversary of the representationClosing; provided, warrantyhowever, that if a Claim Notice (as defined below) relating to any representation or certification, together with details thereof, within a reasonable time after becoming aware of the breach and warranty set forth in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim said Sections is received by such party describing in detail the facts and circumstances with respect given to the subject matter of such Claim an Indemnitor on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as second anniversary of the Closing Date, then, notwithstanding anything to the contrary contained in this Section 9.1(a), such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as each and every claim (including any indemnification claim asserted by any Indemnitee under Section 9.2 that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach of such representation or warranty has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of Seller, ▇▇▇▇▇▇▇▇▇ and the Purchaser or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(b) Notwithstanding The representations, warranties, covenants and obligations of the foregoing provisions parties, and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of this Section any information furnished to, or any other provisions of this Agreement investigation made by or any Closing Documentsknowledge of, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim Indemnitees or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicabletheir Representatives.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence a "CLAIM NOTICE" relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to an Indemnitor a written notice stating that such Indemnitee believes that there is or has been a possible Breach of such representation or warranty and obtaining financing for containing (i) a brief description of the transactions contemplated circumstances supporting such Indemnitee's belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach.
(d) For purposes of this Agreement, each statement or other item of information set forth in the Disclosure Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and warranty made by ▇▇▇▇▇▇▇▇▇ and the Seller in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 1 contract
Sources: Asset Purchase Agreement (Raindance Communications Inc)
Survival of Representations and Covenants. (a) The representations, warranties, All representations and certifications warranties contained in this Agreement shall not merge survive the Option Closing Date and shall expire at 11:59 p.m. (Pacific Time) on the eighteenth-month anniversary of the Option Closing andDate, and shall survive until thereafter be of no further force or effect, except (i) the expiry representations and warranties set forth in Sections 2.3, 2.6, 2.7, 2.8, 2.13, 3.3, and 3.13 shall expire on the expiration of one the relevant statute of limitations, and (1ii) year to the extent required to enforce the parties' rights and obligations hereunder following the Closing Date end of such period for any claims for which a Claim Notice (as defined below) has properly been made prior to the “Survival Period”)expiration of such period. The party which has received a representationAll of the covenants, warranty or certification agreements and obligations of the parties contained in this Agreement shall give Notice survive (i) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the party or parties entitled to such performance or (ii) if not fully performed or fulfilled, until the expiration of the relevant statute of limitations. Notwithstanding anything in this Agreement to the other party contrary, if this Agreement is terminated pursuant to Section 7.1(c) or (d), the representations and warranties contained in this Agreement shall thereafter be of each breach of the representation, warranty, no further force or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision effect.
(b) For purposes of this Agreement, no a "Claim Notice" relating to a particular representation or warranty or covenant shall be deemed to have been given if any Indemnified Party, acting in good faith, delivers to the Indemnifying Party a written notice stating that such Indemnified Party reasonably believes that there is or has been a possible Breach of such representation or warranty or covenant and containing (i) a brief description of the circumstances supporting such Indemnified Party reasonable belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may be asserted arise as a direct or pursued against indirect result of such possible Breach.
(c) Notwithstanding that the accuracy and performance of only certain representations, warranties and covenants are conditions to the obligations of the parties hereto to consummate the transactions contemplated hereby, any party hereto, or any action, suit or other proceeding commenced or pursued, may pursue claims for or in indemnification with respect of any breach to Damages that arise from the Breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits covenant contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in regardless of whether the party asserting a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result claim for indemnification had knowledge of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject Breach prior to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateOption Closing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Medicis Pharmaceutical Corp)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications obligations of each party to this Agreement shall survive (without limitation): (i) the Closing and the sale of the Assets to the Purchaser; (ii) any sale or other disposition of any or all of the Assets by the Purchaser; and (iii) the death or dissolution of any party to this Agreement. Subject to Section 4.1(b) and except in the case of fraud or intentional misrepresentation, all representations and warranties contained in this Agreement shall not merge on Closing andsurvive until, and shall survive until terminate upon, the expiry expiration of one (1) the one-year following anniversary of the Closing Date (the “Survival PeriodIndemnification Deadline”); it being understood that in the event notice of any claim for indemnification under Section 4.2 has been given prior to the Indemnification Deadline, the representations and warranties that are the subject of such indemnification claim shall survive with respect to such claim until such time as such claim is finally resolved, either by means of (x) a written settlement agreement executed on behalf of the Seller Representative and the Purchaser, (y) a final, non-appealable order or judgment issued by a court of competent jurisdiction, or (z) a final, non appealable determination rendered by an arbitration or like panel to which the parties have agreed to submit such matter. The party which has received a representationright to indemnification, warranty payment of Damages or certification other remedy based on the representations, warranties, covenants, and obligations contained in this Agreement shall give Notice will not be affected by any Knowledge acquired with respect to the other party accuracy or inaccuracy of each breach of the or compliance with, any such representation, warranty, covenant or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Periodobligation. Notwithstanding any other provision For purposes of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit each statement or other proceeding commenced or pursued, for or item of information set forth in respect of any breach of any representation, the Disclosure Schedule shall be deemed to be a representation and warranty or certification made by such party the Seller in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing DateAgreement.
(b) Notwithstanding anything to the foregoing provisions contrary, and without limiting the generality of this anything contained in Section or any other provisions of this Agreement or any Closing Documents4.1(a), the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) if ▇▇▇▇▇▇▇▇ or the time limits contained Seller had Knowledge, at or prior to the Closing, of any circumstance that constitutes a Breach of any representation or warranty set forth in Subsection 6.3(a) as applicable;
Section 2, or (ii) no Claim shall be brought against the Vendor by if the Purchaser until had Knowledge, at or prior to the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000)Closing, the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any circumstance that constitutes a Breach of any representation or warranty set forth in Section 3, then in either case such representationrepresentation or warranty shall not expire, warranty or certification or Surviving Covenant can be remedied within a reasonable but rather shall remain in full force and effect for an unlimited period of time (not regardless of whether any claim relating to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one representation or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation warranty has been made). For purposes of this Agreement, due diligence each statement or other item of information set forth in the Disclosure Schedule shall be deemed to be a representation and obtaining financing for warranty made by ▇▇▇▇▇▇▇▇ and the transactions contemplated Seller in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications obligations of each party to this Agreement shall survive (without limitation): (i) the Closing and the assignment and transfer of the Assets to PeopleNet International Corporation; (ii) any sale or other disposition of any or all of the Assets by PeopleNet International Corporation; and (iii) the death or dissolution of any party to this Agreement. Subject to Section 4.1(c), all of said representations and warranties shall remain in full force and effect and shall survive for a period of one year, except those representations and warranties which under the governing laws and regulations shall expire upon the expiration of the applicable statute of limitation and (B) the representations and warranties set forth in Sections 2.4, 2.5 and 2.11, which shall survive for an unlimited amount of time; provided, however, that if any Indemnitee delivers a Claim Notice (as defined below) to any of ECG and the Significant Shareholders during the applicable survival period set forth above, alleging the existence of a Breach of any of the representations and warranties made by ECG or the Significant Shareholders and asserting a claim for recovery under Section 4.2 based on such Breach or alleged Breach, then, notwithstanding anything to the contrary contained in this Agreement shall not merge on Closing andSection 4.1(a), the claim asserted in such notice shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach end of the representation, warrantysuch survival period and remain in full force and effect until such time as each and every claim that is based directly or indirectly upon, or certificationthat relates directly or indirectly to, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted Breach or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice alleged Breach of such Claim representation or warranty is received fully and finally resolved either by such party describing in detail the facts and circumstances with respect to the subject matter means of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) settlement agreement executed by the Significant Shareholders and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect PeopleNet International Corporation or by means of a breach final, non-appealable judgment issued by a court of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Datecompetent jurisdiction.
(b) Notwithstanding The representations, warranties, covenants and obligations of the foregoing provisions Significant Shareholders and ECG, and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of this Section any information furnished to, or any other provisions of this Agreement investigation made by or any Closing Documentsknowledge of, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim Indemnitees or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicabletheir Representatives.
(c) It is agreed that, notwithstanding any other provision The limitations set forth in Section 4.1(a) shall not apply in the case of this Agreement:claims based upon intentional misrepresentation or fraud.
(id) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence each statement or other item of information set forth in the Disclosure Schedule shall be deemed to be a representation and obtaining financing for warranty made by the transactions contemplated Significant Shareholders and ECG in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses . The information disclosed in any particular part of the Disclosure Schedule shall be deemed to relate to and legal fees incurred to its acquisition lenders following qualify the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up representations and warranties contained in the corresponding paragraph of Section 2 of this Agreement as well as the other representations and warranties contained in Section 2 of this Agreement to the amount of extent that the Deposit; and
(iv) for greater certainty, it is confirmed that reference specific disclosure could be clearly interpreted to a breach of apply to any representation such representations and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accuratewarranties.
Appears in 1 contract
Sources: Sale of Assets Agreement (Peoplenet International Corp)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and certifications obligations of each party to this Agreement shall survive (without limitation): (i) the Closing and the assignment and transfer of the Assets to PeopleNet International Corporation; (ii) any sale or other disposition of any or all of the Assets by PeopleNet International Corporation; and (iii) the death or dissolution of any party to this Agreement. Subject to Section 4.1(c), all of said representations and warranties shall remain in full force and effect and shall survive for a period of one year, except those representations and warranties which under the governing laws and regulations shall expire upon the expiration of the applicable statute of limitation and (B) the representations and warranties set forth in Sections 2.4, 2.5 and 2.11, which shall survive for an unlimited amount of time; provided, however, that if any Indemnitee delivers a Claim Notice (as defined below) to any of PC and the Significant Shareholders during the applicable survival period set forth above, alleging the existence of a Breach of any of the representations and warranties made by PC or the Significant Shareholders and asserting a claim for recovery under Section 4.2 based on such Breach or alleged Breach, then, notwithstanding anything to the contrary contained in this Agreement shall not merge on Closing andSection 4.1(a), the claim asserted in such notice shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach end of the representation, warrantysuch survival period and remain in full force and effect until such time as each and every claim that is based directly or indirectly upon, or certificationthat relates directly or indirectly to, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted Breach or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice alleged Breach of such Claim representation or warranty is received fully and finally resolved either by such party describing in detail the facts and circumstances with respect to the subject matter means of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) settlement agreement executed by the Significant Shareholders and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect PeopleNet International Corporation or by means of a breach final, non-appealable judgment issued by a court of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Datecompetent jurisdiction.
(b) Notwithstanding The representations, warranties, covenants and obligations of the foregoing provisions Significant Shareholders and PC, and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of this Section any information furnished to, or any other provisions of this Agreement investigation made by or any Closing Documentsknowledge of, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim Indemnitees or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicabletheir Representatives.
(c) It is agreed that, notwithstanding any other provision The limitations set forth in Section 4.1(a) shall not apply in the case of this Agreement:claims based upon intentional misrepresentation or fraud.
(id) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence each statement or other item of information set forth in the Disclosure Schedule shall be deemed to be a representation and obtaining financing for warranty made by the transactions contemplated Significant Shareholders and PC in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses . The information disclosed in any particular part of the Disclosure Schedule shall be deemed to relate to and legal fees incurred to its acquisition lenders following qualify the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up representations and warranties contained in the corresponding paragraph of Section 2 of this Agreement as well as the other representations and warranties contained in Section 2 of this Agreement to the amount of extent that the Deposit; and
(iv) for greater certainty, it is confirmed that reference specific disclosure could be clearly interpreted to a breach of apply to any representation such representations and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accuratewarranties.
Appears in 1 contract
Sources: Sale of Assets Agreement (Peoplenet International Corp)
Survival of Representations and Covenants. (a) The representations, warranties, representations and certifications contained in this Agreement shall not merge on Closing and, shall survive until the expiry of one (1) year following the Closing Date (the “Survival Period”). The party which has received a representation, warranty or certification in this Agreement shall give Notice to the other party of each breach warranties of the representation, warranty, Company and the Stockholders set forth in or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of made pursuant to this Agreement, no Claim may be asserted or pursued against any party heretoincluding in the Disclosure Schedule and the Company Closing Certificate, or any actionother Transaction Agreement (each, suit a "Representation"), and the representations and warranties of the Buyer and the Buyer Subsidiary set forth in this Agreement, shall survive: (i) the Closing; (ii) any sale or other proceeding commenced or pursued, for or in respect disposition of any breach or all of the Surviving Corporation or the Assets of the Surviving Corporation by the Buyer; and (iii) the death or dissolution of any representationparty to this Agreement, warranty or certification made by such party and shall remain in this Agreement unless full force and effect and shall survive for twelve (12) months after the Closing.
(b) If a Claim Notice of such Claim relating to any Representation is received by such party describing in detail the facts and circumstances with respect given to the subject matter of such Claim Stockholder Representative on or prior to the last day end of the Survival Periodapplicable survival period set forth in Section 15.1(a), irrespective of whether then, notwithstanding anything to the subject matter contrary contained in this Section 15.1, such Representation shall not so expire, but rather shall remain in full force and effect until such time as each and every claim, including any indemnification claim asserted by any Indemnitee under Section 15.2, that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach of such Claim shall have occurred before or after such date; Representation has been fully and upon the expiry finally resolved, either by means of a written settlement agreement executed on behalf of the Survival Period all such representations, warranties, Stockholder Representative and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect Buyer or by means of a breach final, non-appealable judgment issued by a court of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicablecompetent jurisdiction.
(c) It Notwithstanding anything to the contrary contained in Section 15.1(b) (and without limiting the generality of anything contained in Section 15.1(a)), if any Stockholder or the Company had Knowledge, on or prior to the Closing, of any circumstance that constituted or that could have reasonably been expected to give rise to any Breach of any Representation, then such Representation shall not expire, but rather shall remain in full force and effect for an unlimited period of time, regardless of whether any Claim Notice relating to such Representation is agreed that, notwithstanding any other provision of this Agreement:ever given.
(id) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence and obtaining financing for the transactions contemplated a "Claim Notice" relating to a particular Representation, covenant or obligation shall be deemed to have been given if an Indemnitee, acting in this Agreementgood faith, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up delivers to the Stockholder Representative a written notice stating that such Indemnitee believes, or a third Person asserts, that there is or has been a possible Breach of such Representation, covenant or obligation and containing (i) a brief description of the circumstances supporting such Indemnitee's belief (or such third Person's assertion) that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the Deposit; and
(iv) for greater certainty, it is confirmed actual and potential Damages that reference to have arisen and may arise as a breach direct or indirect result of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accuratepossible or asserted Breach.
Appears in 1 contract
Survival of Representations and Covenants. (a) Except as set forth in Sections 7.1(c) and 7.1(d), the representations and warranties of the Sellers, the Stockholders, and the Buyer will expire upon that date that is [**] after the Closing Date (the “Expiration Date”); provided, however, that if an request for indemnification under this Section 7 relating to any such representation or warranty is given to the Indemnifying Party on or prior to the Expiration Date, then, notwithstanding anything to the contrary contained in this Section 7.1, the claims asserted in such request for indemnification will not so expire, but rather will remain in full force and effect until such time as such claims have been fully and finally resolved.
(b) The representations, warranties, covenants and certifications contained obligations of any Indemnifying Party, and the rights and remedies that may be exercised by any Indemnitee, will not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any knowledge of, any Indemnitee or any of its Representatives.
(c) Subject to Section 7.1(d), the representations and warranties set forth in this Agreement shall not merge on Closing andSections 2.10 (Employees; Benefit Plans), shall survive until the expiry of one 2.11 (1Intellectual Property), and 2.16 (Compliance with Laws; Permits) year following will expire upon that date that is [**] after the Closing Date (the “Survival PeriodExtended Date”). The party which has received a representation; provided, however, that if an request for indemnification under this Section 7 relating to any such representation or warranty or certification in this Agreement shall give Notice is given to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim Sellers on or prior to such date, then, notwithstanding anything to the last day contrary contained in this Section 7.1(b), the claims asserted in such request for indemnification will not so expire, but rather will remain in full force and effect until such time as such claims have been fully and finally resolved. The representations and warranties set forth in Sections 2.1 (Due Organization; Capitalization), 2.2 (Authority), 2.3(a) (Non-Contravention; Consents), 2.4 (Title to Assets; Sufficiency), 2.6 (Solvency), 2.20 (Related Party Transactions), 2.21 (Brokers), 3 (Representations and Warranties of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; Stockholders) and upon the expiry 4 (Representations and Warranties of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to Buyer) (the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a“Fundamental Representations”) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party will upon that it had actual knowledge was false or untrue as of date that is [**] after the Closing Date.
(bd) Notwithstanding anything to the foregoing provisions contrary contained in Section 7.1(b) (and without limiting the generality of this anything contained in Section or 7.1(a)), if there is any other provisions fraudulent misrepresentation by the Sellers in Section 2 of this Agreement or any Closing Documentsfraudulent misrepresentation by a Stockholder in Section 3 of this Agreement, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing then such fraudulent misrepresentation will not expire, but rather will remain in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to full force and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable effect for an unlimited period of time (not regardless of whether any request for indemnification under this Section 7 relating to exceed one hundred eighty (180) days after Notice thereof such representation or warranty is ever given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable).
(ce) It is agreed the express intent of the parties that, notwithstanding any other provision if the applicable survival period for an item as contemplated by this Section 7.1 is shorter than the statute of limitations that would otherwise have been applicable to such item, then, by contract, the applicable statute of limitations with respect to such item shall be reduced to the shortened survival period contemplated hereby. The parties further acknowledge that the time periods set forth in this Agreement:
(i) Section 7.1 for the Purchaser shall not have the right to terminate assertion of claims under this Agreement as a are the result of arms’-length negotiation among the breach parties and that they intend for the time periods to be enforced as agreed by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateparties.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations, warranties, All representations and certifications warranties contained in this Agreement shall not merge survive the Option Closing Date and shall expire at 11:59 p.m. (Pacific Time) on the eighteenth-month anniversary of the Option Closing andDate, and shall survive until thereafter be of no further force or effect, except (i) the expiry representations and warranties set forth in Sections 2.3, 2.6, 2.7, 2.8, 2.13, 3.3, and 3.13 shall expire on the expiration of one the relevant statute of limitations, and (1ii) year to the extent required to enforce the parties’ rights and obligations hereunder following the Closing Date end of such period for any claims for which a Claim Notice (as defined below) has properly been made prior to the “Survival Period”)expiration of such period. The party which has received a representationAll of the covenants, warranty or certification agreements and obligations of the parties contained in this Agreement shall give Notice survive (i) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the party or parties entitled to such performance or (ii) if not fully performed or fulfilled, until the expiration of the relevant statute of limitations. Notwithstanding anything in this Agreement to the other party contrary, if this Agreement is terminated pursuant to Section 7.1(c) or (d), the representations and warranties contained in this Agreement shall thereafter be of each breach of the representation, warranty, no further force or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision effect.
(b) For purposes of this Agreement, no a “Claim Notice” relating to a particular representation or warranty or covenant shall be deemed to have been given if any Indemnified Party, acting in good faith, delivers to the Indemnifying Party a written notice stating that such Indemnified Party reasonably believes that there is or has been a possible Breach of such representation or warranty or covenant and containing (i) a brief description of the circumstances supporting such Indemnified Party reasonable belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may be asserted arise as a direct or pursued against indirect result of such possible Breach.
(c) Notwithstanding that the accuracy and performance of only certain representations, warranties and covenants are conditions to the obligations of the parties hereto to consummate the transactions contemplated hereby, any party hereto, or any action, suit or other proceeding commenced or pursued, may pursue claims for or in indemnification with respect of any breach to Damages that arise from the Breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim on or prior to the last day of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect of a breach of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Date.
(b) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits covenant contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in regardless of whether the party asserting a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result claim for indemnification had knowledge of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject Breach prior to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation of this Agreement, due diligence and obtaining financing for the transactions contemplated in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurateOption Closing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Biomarin Pharmaceutical Inc)
Survival of Representations and Covenants. (a) The representations and warranties of each of the Seller Corporations set forth in this Agreement shall survive (without limitation): (i) the Closing and the sale of the Designated Assets to the Purchaser; (ii) any sale or other disposition of any or all of the Designated Assets by the Purchaser; and (iii) the dissolution or liquidation of any Party to this Agreement. The representations and warranties of the Purchaser and Parent set forth in this Agreement shall expire at the Closing and shall thereafter be of no further force or effect.
(b) The representations, warranties, covenants and certifications contained obligations of the Seller Corporations, and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any knowledge of, any of the Indemnitees or any of their Representatives; provided, however, that notwithstanding the foregoing, qualifications set forth in the Disclosure Letter shall be deemed to qualify the corresponding representations and warranties set forth in Section 2 to the extent of such qualifications.
(c) The representations and warranties of the Seller Corporations set forth in this Agreement shall not merge expire on Closing and, shall survive until the expiry 18-month anniversary of one (1) year following the Closing Date (the “Survival Period”"Expiration Date"). The party which has received ; provided, however, that if a representation, Claim Notice (as defined below) relating to any representation or warranty of the Seller or certification in this Agreement shall give Notice Seller Sub is given to the other party of each breach of the representation, warranty, or certification, together with details thereof, within a reasonable time after becoming aware of the breach and in any event not later than the last day of the Survival Period. Notwithstanding any other provision of this Agreement, no Claim may be asserted or pursued against any party hereto, or any action, suit or other proceeding commenced or pursued, for or in respect of any breach of any representation, warranty or certification made by such party in this Agreement unless Notice of such Claim is received by such party describing in detail the facts and circumstances with respect to the subject matter of such Claim Seller on or prior to the last day Expiration Date, then, notwithstanding anything to the contrary contained in this Section 9.1(c), such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as each and every claim (including any indemnification claim asserted by any Indemnitee under Section 9.2) that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach of such representation or warranty has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of the Survival Period, irrespective of whether the subject matter of such Claim shall have occurred before or after such date; Seller and upon the expiry of the Survival Period all such representations, warranties, and certifications shall cease to have any effect except to the extent a written Claim has been previously given in respect thereof in accordance with this Subsection 6.3(a) and Subsection 6.3(b). Neither the Vendor nor the Purchaser shall be entitled to make any Claim in respect or by means of a breach final, non-appealable judgment issued by a court of a representation, warranty or indemnity from the other party that it had actual knowledge was false or untrue as of the Closing Datecompetent jurisdiction.
(bd) Notwithstanding the foregoing provisions of this Section or any other provisions of this Agreement or any Closing Documents, the liability of any party to this Agreement (herein referred to as the “Responsible Party”) after Closing in respect of any representation, warranty, or certification made by such Responsible Party in or pursuant to this Agreement or in any Closing Document made by such Responsible Party shall be subject to and limited by the following:
(i) the time limits contained in Subsection 6.3(a) as applicable;
(ii) no Claim shall be brought against the Vendor by the Purchaser until the aggregate of all the amounts claimed pursuant to such Claim or Claims that have then been made by the Initiating Party against the Vendor exceed Five Hundred Thousand dollars ($500,000) provided that if the aggregate of all such Claims exceeds Five Hundred Thousand dollars ($500,000), the Purchaser shall be entitled to recover the full amount of the Claim or Claims including the initial Five Hundred Thousand dollars ($500,000) and only if such Claim or Claims are successful;
(iii) if any breach of any such representation, warranty or certification or Surviving Covenant can be remedied within a reasonable period of time (not to exceed one hundred eighty (180) days after Notice thereof is given) the Responsible Party shall be given a reasonable opportunity to remedy any such breach, provided such breach is capable of being remedied and granting such opportunity does not, in the opinion of the Initiating Party, acting reasonably, adversely affect the Initiating Party; and
(iv) the provisions of Subsection 6.3(a) and Section 6.5 if applicable.
(c) It is agreed that, notwithstanding any other provision of this Agreement:
(i) the Purchaser shall not have the right to terminate this Agreement as a result of the breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement, unless it results in a Material Value Reduction;
(ii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement that does not result in a Material Value Reduction, then the Purchaser shall not have any right to terminate this Agreement as a result of such breach, but the Purchaser shall have the right to bring an action for damages, if any, which may otherwise be asserted subject to the provisions of this Section 6.3 and, if applicable, Section 6.5;
(iii) if there is any breach by the Vendor of one or more representations and warranties made by the Vendor in this Agreement as a result of a Material Condition that results in a Material Value Reduction, then the Purchaser shall have the right to terminate this Agreement as a result of such breach as set out in Section 6.1, and in such event the Deposit and all interest earned thereon shall be returned to the Purchaser, and the Vendor shall reimburse the Purchaser for its reasonable and customary third-party out of pocket costs and expenses incurred in connection with its negotiation For purposes of this Agreement, due diligence a "Claim Notice" relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the Seller a written notice stating that such Indemnitee believes that there is or has been a possible Breach of such representation or warranty and obtaining financing for containing (i) a brief description of the transactions contemplated circumstances supporting such Indemnitee's belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach.
(e) For purposes of this Agreement, each statement or other item of information set forth in the Disclosure Letter or in any update to the Disclosure Letter shall be deemed to be a representation and warranty made by the Seller Corporations in this Agreement, including without limitation, all commitment fees, lenders’ rate lock expenses and legal fees incurred to its acquisition lenders following the Purchaser’s Condition Date (collectively, “Purchaser’s Expenses”) up to the amount of the Deposit; and
(iv) for greater certainty, it is confirmed that reference to a breach of any representation and warranty means such representation and warranty is not true and accurate. “Material Value Reduction” means that, in the Purchaser’s reasonable determination, the fair market value of the Subject Assets is at least two percent (2%) of the Purchase Price less than what the value of the Subject Assets would be if such representation and warranty were true and accurate.
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