/Docs/G/ABA-MSPA-SPA-CmA/Form/SPA/0.md
  Source views: Source JSON(ish) on GitHub (VSCode)   Doc views: Document (&k=Claim.Sec): Visual Print Technical: OpenParameters Xray
Indemnification; Payment; Reimbursement; Remedies
  1. Survival; Remedies
    1. All representations, warranties, covenants, and obligations in this Agreement, the Disclosure Letter, the supplements to the Disclosure Letter, and any certificate, document, or other writing delivered pursuant to this Agreement will survive the Closing and the consummation and performance of the Contemplated Transactions.
    2. The right to indemnification, payment, reimbursement, or other remedy based upon any such representation, warranty, covenant, or obligation will not be affected by any investigation (including any environmental investigation or assessment) conducted or any Knowledge acquired at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of, or compliance with, such representation, warranty, covenant, or obligation.
    3. The waiver of any condition relating to any representation, warranty, covenant, or obligation will not affect the right to indemnification, payment, reimbursement, or other remedy based upon such representation, warranty, covenant, or obligation.
  2. Indemnification, Payment, and Reimbursement by Sellers
    Sellers, jointly and severally, shall indemnify and hold harmless Buyer, the Acquired Companies, and their respective Representatives, shareholders, Subsidiaries, and Related Persons (collectively, the "Buyer Indemnified Persons") from, and shall pay to Buyer Indemnified Persons the amount of, or reimburse Buyer Indemnified Persons for, any Loss that Buyer Indemnified Persons or any of them may suffer, sustain, or become subject to, as a result of, in connection with, or relating to:
    1. any Breach of any representation or warranty made by Sellers in (i) this Agreement or the Disclosure Letter (without giving effect to any supplement to the Disclosure Letter), (ii) any supplement to the Disclosure Letter, (iii) the certificate delivered pursuant to Section 8.3 (without giving effect to the words "in all material respects" in Section 8.1(a)), or (iv) any other certificate, document, or other writing delivered by Sellers pursuant to this Agreement;
    2. any Breach of any covenant or obligation of any Seller in this Agreement or in any certificate, document, or other writing delivered by any Seller pursuant to this Agreement;
    3. any claim by any Person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any such Person with any Seller or any Acquired Company (or any Person acting on their behalf) in connection with any Contemplated Transaction;
    4. (i) any Taxes of any Acquired Company not reflected on the Closing Balance Sheet relating to periods on or prior to the Closing Date, and (ii) any liability of any Acquired Company for Taxes of any other Person, as a transferee or successor, by Contract or otherwise;
    5. any product shipped or manufactured by, or any services provided by, any Acquired Company, in whole or in part, prior to the Closing Date; or
    6. any matter disclosed in Part 11.2(f).
  3. Indemnification, Payment, and Reimbursement by Sellers — Environmental Matters
    In addition to the provisions of Section 11.2, Sellers, jointly and severally, shall indemnify and hold harmless Buyer Indemnified Persons from, and shall pay to Buyer Indemnified Persons the amount of, or reimburse Buyer Indemnified Persons for, any Loss (including costs of any Cleanup) that Buyer Indemnified Persons or any of them may suffer, sustain, or become subject to, as a result of, in connection with, or relating to:
    1. any Environmental, Health, and Safety Liability arising out of or relating to:
      1. (A) the ownership, operation, or condition at any time on or prior to the Closing Date of the Facilities, or (B) any Hazardous Material that was present on or at the Facilities at any time on or prior to the Closing Date;
      2. (A) any Hazardous Material, wherever located, that was generated, transported, stored, treated, Released, or otherwise handled by any Acquired Company at any time on or prior to the Closing Date, or (B) any Hazardous Activity that was conducted by any Acquired Company or by any other Person for whose conduct they are or may be held responsible; or
    2. any bodily injury (including illness, disability, and death, and regardless of when any such bodily injury occurred or manifested itself), property damage (including trespass, nuisance, wrongful eviction, and deprivation of the use of real property), or other damage of or to any Person, including any employee or former employee of any Acquired Company, in any way arising from or allegedly arising from any Hazardous Activity conducted with respect to the Facilities or the operation of the Acquired Companies on or prior to the Closing Date or from Hazardous Material that was:
      1. present on or prior to the Closing Date on or at the Facilities (or present on or at any other property, if such Hazardous Material emanated or allegedly emanated from any of the Facilities on or prior to the Closing Date); or
      2. Released by Sellers or any Acquired Company or any other Person for whose conduct they are or may be held responsible, at any time on or prior to the Closing Date.
    Section 11.8 notwithstanding, Buyer shall be entitled (at its election) to control any Cleanup, any related Proceeding, and, except as provided in the following sentence, any other Proceeding with respect to which relief may be sought under this Section 11.3. The procedure described in Section 11.8, however, will apply to any Third-Party Claim solely for monetary damages relating to a matter covered by this Section 11.3.
  4. Indemnification, Payment, and Reimbursement by Buyer
    Buyer shall indemnify and hold harmless Sellers from, and shall pay to Sellers the amount of, or reimburse Sellers for, any Loss that Sellers or any of them may suffer, sustain, or become subject to, as a result of, in connection with, or relating to:
    1. any Breach of any representation or warranty made by Buyer in (i) this Agreement, (ii) the certificate delivered pursuant to Section 9.3, or (iii) in any other certificate, document, or other writing delivered by Buyer pursuant to this Agreement;
    2. any Breach of any covenant or obligation of Buyer in this Agreement or in any certificate, document, or other writing delivered by Buyer pursuant to this Agreement; or
    3. any claim by any Person for brokerage or finder's fees or commissions or similar payments based upon any agreement or understanding made, or alleged to have been made, by any such Person with Buyer (or any Person acting on its behalf) in connection with any Contemplated Transaction.
  5. Time Limitations
    1. If the Closing occurs, Sellers shall have liability under Section 11.2(a) with respect to any Breach of a representation or warranty (other than those in Section 3.1, Section 3.2, Section 3.3, Section 3.11, Section 3.13, Section 3.19, Section 3.24, or Section 3.28, as to which a claim may be made at any time), only if on or before the date that is three years after the Closing Date, Buyer notifies Sellers' Representative of a claim, specifying the factual basis of the claim in reasonable detail to the extent known by Buyer.
    2. If the Closing occurs, Buyer shall have liability under Section 11.4(a) with respect to any Breach of a representation or warranty (other than those in Section 4.1, Section 4.2, and Section 4.5, as to which a claim may be made at any time), only if on or before the date that is three years after the Closing Date, Sellers notify Buyer of a claim specifying the factual basis of the claim in reasonable detail to the extent known by Sellers.
  6. Certain Limitations on Amount
    1. If the Closing occurs, Sellers shall have no liability with respect to claims under Section 11.2(a) until the aggregate of all Losses suffered by all Buyer Indemnified Persons with respect to such claims exceeds Loss.Buyer.Threshold.Sum.$; provided, however, that if the aggregate of all such Losses exceeds Loss.Buyer.Threshold.Sum.$, Sellers shall be liable for all such Losses. If the Closing occurs, the aggregate liability of Sellers with respect to Losses for claims under Section 11.2(a) shall not exceed Loss.Buyer.Max.Aggregate.Sum.$. However, this Section 11.6(a) will not apply to any Breach of which a Seller has Knowledge at any time at or prior to the date on which such representation and warranty was made or to any Breach of any representation or warranty in Section 3.1, Section 3.2, Section 3.3, Section 3.11, Section 3.13, Section 3.19, Section 3.24, or Section 3.28.
    2. If the Closing occurs, Buyer shall have no liability with respect to claims under Section 11.4(a) until the aggregate of all Losses suffered by all Seller Indemnified Persons with respect to such claims exceeds Loss.Seller.Threshold.Sum.$; provided, however, that if the total of all such Losses exceeds Loss.Seller.Threshold.Sum.$, Buyer shall be liable for all such Losses. If the Closing occurs, the aggregate liability of Buyer with respect to Losses for claims under Section 11.4(a) shall not exceed Loss.Seller.Max.Sum.$. However, this Section 11.6(b) will not apply to any Breach of which Buyer has Knowledge at any time at or prior to the date on which such representation and warranty was made or to any Breach of any representation or warranty in Section 4.1, Section 4.2, or Section 4.5.
  7. Setoff Right
    Upon notice to Sellers' Representative specifying in reasonable detail the basis therefor, Buyer may set off any amount to which it claims to be entitled from any Seller, including any amounts that may be owed under this Section 11 or otherwise, against amounts otherwise payable under the Promissory Notes or any provision of this Agreement. The exercise of such right of setoff by Buyer in good faith, whether or not ultimately determined to be justified, will not constitute a default under this Agreement, the Promissory Notes, or any instrument securing any of the Promissory Notes, regardless of whether any Seller disputes such setoff claim, or whether such setoff claim is for a contingent or an unliquidated amount. Neither the exercise of, nor the failure to exercise, such right of setoff or give notice of a claim under the Escrow Agreement will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it.
  8. Third-Party Claims
    1. A Person benefited by Section 11.2, Section 11.3 (solely to the extent provided in the last sentence of Section 11.3), or Section 11.4 (an "Indemnified Person") shall give notice of the assertion of a Third-Party Claim to Sellers' Representative or Buyer (an "Indemnifying Person"), as the case may be; provided, however, that no failure or delay on the part of an Indemnified Person in notifying an Indemnifying Person will relieve the Indemnifying Person from any obligation under this Section 11 except to the extent that the failure or delay materially prejudices the defense of the Third-Party Claim by the Indemnifying Person.
      1. Except as provided in Section 11.8(c), the Indemnifying Person may elect to assume the defense of the Third-Party Claim with counsel satisfactory to the Indemnified Person by (A) giving notice to the Indemnified Person of its election to assume the defense of the Third-Party Claim and (B) giving the Indemnified Person evidence acceptable to the Indemnified Person that the Indemnifying Person has adequate financial resources to defend against the Third-Party Claim and fulfill its obligations under this Section 11, in each case no later than 10 days after the Indemnified Person gives notice of the assertion of a Third-Party Claim under Section 11.8(a).
      2. If the Indemnifying Person elects to assume the defense of a Third-Party Claim:
        1. it shall diligently conduct the defense and, so long as it diligently conducts the defense, shall not be liable to the Indemnified Person for any Indemnified Person's fees or expenses subsequently incurred in connection with the defense of the Third-Party Claim other than reasonable costs of investigation;
        2. the election will conclusively establish for purposes of this Agreement that the Indemnified Person is entitled to relief under this Agreement for any Loss arising, directly or indirectly, from or in connection with the Third-Party Claim (subject to the provisions of Section 11.6);
        3. no compromise or settlement of such Third-Party Claim may be effected by the Indemnifying Person without the Indemnified Person's consent unless (I) there is no finding or admission of any violation by the Indemnified Person of any Legal Requirement or any rights of any Person, (II) the Indemnified Person receives a full release of and from any other claims that may be made against the Indemnified Person by the Third Party bringing the Third-Party Claim, and (III) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person; and
        4. the Indemnifying Person shall have no liability with respect to any compromise or settlement of such claims effected without its consent.
      3. If the Indemnifying Person does not assume the defense of a Third-Party Claim in the manner and within the period provided in Section 11.8(b)(i), or if the Indemnifying Person does not diligently conduct the defense of a Third-Party Claim, the Indemnified Person may conduct the defense of the Third-Party Claim at the expense of the Indemnifying Person and the Indemnifying Person shall be bound by any determination resulting from such Third-Party Claim or any compromise or settlement effected by the Indemnified Person.
    3. Notwithstanding the foregoing, if an Indemnified Person determines in good faith that there is a reasonable probability that a Third-Party Claim may adversely affect it or any Related Party other than as a result of monetary damages for which it would be entitled to relief under this Agreement, the Indemnified Person may, by notice to the Indemnifying Person, assume the exclusive right to defend, compromise, or settle such Third-Party Claim.
    4. Notwithstanding the provisions of Section 12.13, Sellers consent to the nonexclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of determining any claim that an Indemnified Person may have under this Agreement with respect to such Proceeding or the matters alleged therein.
  9. Other Claims
    A claim under this Section 11 for any matter not involving a Third-Party Claim may be made by notice to Sellers' Representative or Buyer, as the case may be, and shall be indemnified, paid, or reimbursed promptly after such notice. Buyer may elect in its discretion to have payment or reimbursement made from the Escrow Funds pursuant to the terms of the Escrow Agreement, by setoff against amounts otherwise payable under the Promissory Notes or otherwise pursuant to Section 11.7, or in any other manner.
  10. Strict Liability or Indemnitee Negligence
    The provisions in this Section 11 shall be enforceable regardless of whether the liability is based upon past, present, or future acts, claims, or legal requirements (including any past, present, or future environmental law, occupational safety and health law, or products liability, securities, or other legal requirement) and regardless of whether any person (including the person from whom relief is sought) alleges or proves the sole, concurrent, contributory, or comparative negligence of the person seeking relief, or the sole or concurrent strict liability imposed upon the person seeking relief.