Additional Indemnification Provisions. (a) With respect to each indemnification obligation under this Agreement (i) each such obligation shall be calculated on an After-Tax Basis and (ii) all Losses shall be net of any third-party insurance proceeds that have been recovered or are recoverable by the Indemnified Party in connection with the facts giving rise to the right of indemnification.
(b) If an Indemnifying Party makes any payment for any Losses suffered or incurred by an Indemnified Party pursuant to the provisions of this Article VII, such Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party to any insurance benefits or other claims of the Indemnified Party with respect to such Losses and with respect to the claim giving rise to such Losses.
(c) The right to indemnification or other remedy based on any representations, warranties, obligations, covenants and agreements set forth in this Agreement or in any of the Ancillary Agreements, will not be affected by any investigation conducted with respect to, or any notice or knowledge acquired (or capable of being acquired), with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement; provided, however, that notwithstanding anything to the contrary contained herein, except as set forth on Section 7.7(c) of the ABI Disclosure Letter, ABI shall not have any liability relating to any breach of, or inaccuracy in, any representation or warranty made herein that, as of the date hereof, any Buyer Party had Knowledge of the breach or inaccuracy of the representation or warranty or of the facts relating to such breach or inaccuracy.
Additional Indemnification Provisions. (a) The Parent and the Acquiror agree, for themselves and on behalf of their respective Affiliates and Representatives, that with respect to each indemnification obligation set forth in ARTICLE X of this Agreement or any other certificate executed or delivered in connection with the Closing: (i) Deductible Losses shall be calculated on an After-Tax Basis; (ii) all Losses shall be net of any Eligible Insurance Proceeds; (iii) in no event shall the Parent have any liability or obligation to any Acquiror Indemnified Party pursuant to this ARTICLE X with respect to the inaccuracy or breach of a representation or warranty made by the Parent pursuant to this Agreement to the extent that Losses resulting from or in connection with such inaccuracy or breach have been recovered by the Acquiror in connection with the calculation of the Final Actual Closing Solvency Capital; (iv) the Indemnifying Party shall be liable to the Indemnified Party for any Losses to the extent incurred in connection with the Indemnified Party’s successful assertion, enforcement, dispute or resolution of its indemnification or other rights under this Agreement or the collection of any amounts payable to a Party under this Agreement; (v) solely with respect to claims that are not Third Party Claims, the Indemnified Party shall be liable to the Indemnifying Party for any Losses to the extent incurred in connection with the Indemnifying Party’s successful defense of any claim by the Indemnified Party for indemnification or other rights under this Agreement; (vi) in no event shall the Parent have any liability or obligation to any Acquiror Indemnified Party to the extent that any Loss, or any portion thereof, for which indemnification is sought hereunder is specifically reflected or reserved for in the Final Actual Closing Solvency Capital Worksheet and taken into account in the calculation of the Final Actual Closing Solvency Capital; and (vii) notwithstanding anything contained in this Agreement to the contrary, for purposes of ARTICLE VII and this ARTICLE X, (A) a breach of a representation or warranty shall be deemed to exist either if such representation or warranty is actually inaccurate or breached or would have been inaccurate or breached if such representation or warranty had not contained any qualification as to materiality, or Acquiror Material Adverse Effect or Material Adverse Effect (which, in each case, instead will be read as any adverse effect or change) or similar language, an...
Additional Indemnification Provisions. (a) With respect to each indemnification obligation contained in this Agreement: (i) each such obligation shall be reduced by any Tax benefit (net of any costs or expenses (including any Tax) incurred in connection with seeking and securing such Tax benefit) that is actually realized by the Indemnified Party within two (2) Tax years of the recipient after the Tax year of the recipient in which such obligation arises; and (ii) all Losses shall be net of any amounts that have been recovered by the Indemnified Party pursuant to any indemnification by, or indemnification agreement with, any third party or any insurance policy or other cash receipts or sources of reimbursement in respect of such Loss.
(b) Notwithstanding anything in this Agreement or in any Closing Document to the contrary, in no event shall either party hereto have any liability under this Agreement (including under this Article XI) or any Closing Document for any consequential, incidental, indirect, punitive or exemplary damages, including lost profits and opportunity costs (except to the extent such damages are assessed in connection with a Third Party Claim with respect to which the Person against which such damages are assessed is entitled to indemnification hereunder).
Additional Indemnification Provisions. In addition to any other limitations contained in Article IX or this Article X, the obligations of Seller, Parent and Purchaser to indemnify any Purchaser Indemnified Party or Seller Indemnified Party, as the case may be, are subject to the following:
(a) Seller and Parent shall be obligated to provide indemnification pursuant to Section 10.1(a)(i) (other than with respect to the Seller Fundamental Representations and the representations and warranties set forth in Section 3.20) only if the aggregate dollar amount of Losses with respect to all breaches of, or inaccuracies in, representations and warranties referred to in Section 10.1(a)(i) (other than with respect to the Seller Fundamental Representations and the representations and warranties set forth in Section 3.20) exceeds $12,500,000 (the “Deductible”), and then only for the amount of such Losses in excess of the Deductible.
(b) The maximum aggregate liability of Seller and Parent for indemnification for all Losses pursuant to Section 10.1(a)(i) (other than with respect to the Seller Fundamental Representations and the representations and warranties set forth Section 3.20) shall be an amount equal to 22.5% of the sum of (i) the Purchase Price as finally adjusted in accordance with Section 2.5 and (ii) the Ceding Commission as finally adjusted as set forth in the MLOA Reinsurance Agreement.
(c) For purposes of this Article X (i) the amount of Losses arising out of or relating to a breach of or an inaccuracy in a representation or warranty that is subject to indemnification pursuant to Section 10.1(a)(i) or Section 10.1(b)(i) shall be deemed to exist either if such representation or warranty is actually inaccurate or breached or would have been inaccurate or breached if such representation or warranty had not contained any qualification as to materiality, Business Material Adverse Effect, Purchaser Material Adverse Effect (which, in each case, instead will be read as any adverse effect or change) or similar language or, with respect to the representation and warranty in Section 3.21(e) only, if such representation and warranty had not contained any qualification as to Knowledge, and (ii) the amount of Losses in respect of a breach resulting from the application of clause (i) above shall be determined without regard to any limitation or qualification as to materiality, “Business Material Adverse Effect,” “Purchaser Material Adverse Effect” (which instead will be read as any adverse effect or change) or ...
Additional Indemnification Provisions. (a) All indemnifiable Losses incurred in connection with any Transaction Agreement or any other document executed in connection with the Closing shall be offset by any third-party insurance proceeds (net of any actual costs, expenses or premiums incurred in connection with securing or obtaining such proceeds) that have actually been recovered by the Indemnified Person in connection with the facts giving rise to the right of indemnification shall be calculated on an After-Tax Basis; provided, however, that neither the Indemnified Person nor his, her or its Affiliates shall have any obligation to seek to recover any insurance proceeds in connection with making a claim under this Article VIII, except in connection with a claim for indemnification based on breach of any representations and warranties in Section 3.18, in which case the Acquiror shall use commercially reasonable efforts to pursue available claims under any applicable title insurance policies. Notwithstanding anything to the contrary herein, Seller shall have no liability to indemnify any Acquiror Indemnified Person with respect to any Liability that is specifically reflected as a liability in the Final Closing Statement solely to the extent of any amount reflected thereunder.
(b) If an Indemnifying Person makes any payment for any Losses suffered or incurred by an Indemnified Person pursuant to the provisions of this Article VIII, such Indemnifying Person shall be subrogated, to the extent of the amount of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims of the Indemnified Person as against any other Persons with respect to such Losses and with respect to the claim giving rise to such Losses.
Additional Indemnification Provisions. With respect to each indemnification obligation contained in this Article X, all Losses shall be net of indemnity proceeds that have been recovered by the indemnified Party in connection with the facts giving rise to the right of indemnification (it being agreed that if indemnification proceeds in respect of such facts are recovered by the indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent that the indemnification payment made exceed the Losses incurred), and the indemnified Party shall use, and cause its Affiliates to use, commercially reasonable efforts to seek recovery under all indemnity provisions covering such Losses to the same extent as it would if such Losses were not subject to indemnification hereunder.
Additional Indemnification Provisions. With respect to each indemnification obligation contained in this Agreement, all Losses shall be reduced by (x) any net cash Tax benefit actually realized by the Indemnified Party or its Affiliates in connection with the incurrence of such Loss with respect to the taxable year of such Loss or any of the following two taxable years and (y) the amount of any third party insurance or other indemnity or reimbursement proceeds that have been recovered by the Indemnified Party in connection with the facts giving rise to the right of indemnification (it being agreed that if such proceeds in respect of such facts are recovered, or such net cash Tax benefit actually realized, by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds, or the amount of such net cash Tax benefit, as applicable, shall be promptly remitted to the Indemnifying Party to the extent such reduction of the Losses would have reduced the Indemnifying Party’s indemnification obligations). Purchaser agrees that the R&W Insurance Policy shall expressly exclude any right of subrogation against Seller and its Affiliates (except in the case of Fraud).
Additional Indemnification Provisions. With respect to each indemnification obligation contained in this Agreement, all Covered Losses shall be (a) reduced by any Tax benefits actually realized by the Indemnified Party or its Affiliates through a reduction in Taxes otherwise due as a result of the incurrence of such Covered Loss and (b) net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered by the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification (it being agreed that if third-party insurance or indemnification, contribution or similar proceeds in respect of such facts are recovered by the Indemnified Party or its Affiliates subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made). Upon making any payment to the Indemnified Party for any indemnification claim pursuant to this Article X, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any third parties with respect to the subject matter underlying such indemnification claim, and the Indemnified Party shall assign any such rights to the Indemnifying Party and otherwise cooperate with the Indemnifying Party in seeking recovery thereunder.
Additional Indemnification Provisions. (a) With respect to each indemnification obligation contained in this Agreement all Losses shall be net of any third-party insurance proceeds that have been actually recovered by the Indemnified Party in connection with the facts giving rise to the right of indemnification.
(b) If an Indemnifying Party makes any payment for any Losses suffered or incurred by an Indemnified Party pursuant to the provisions of this Article 7, such Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party to any insurance benefits or other claims of the Indemnified Party with respect to such Losses and with respect to the claim giving rise to such Losses.
(c) For the avoidance of doubt, Losses covered by Section 7.03 or Section 7.04 hereof may include Losses incurred in connection with a Third Party Claim.
Additional Indemnification Provisions. (a) Purchaser and BLCI, jointly and severally, further agree to indemnify, reimburse, defend and hold harmless the Company Indemnified Parties for, from and against all Losses (including costs of Remedial Work) asserted against, resulting to, imposed on, or incurred by any of them, directly or indirectly, in connection with any of the following:
(i) events, circumstances, or conditions which are alleged to, or do, form the basis for an Environmental Claim;
(ii) the presence, Use or Release of Hazardous Substances at, on, in, under or from the Real Property;
(iii) any Environmental Claim against any Person whose liability for such Environmental Claim Purchaser or BLCI has or may have assumed or retained either contractually or by operation of law;
(iv) any failure of Purchaser or BLCI to fulfill each and every obligation undertaken pursuant to this Agreement or the breach of any representation, warranty or covenant of Purchaser or BLCI set forth in this Agreement;
(v) events, circumstances, or conditions relating to the Facility, the operation of the Facility or Purchaser or BLCI or its Affiliates which form or are alleged to form the basis for any claim under any applicable laws except to the extent caused directly by any of the Company Indemnified Parties prior to the effective date hereof;
(vi) anything occurring at or around, or in connection with, the Facility or the operation of the Facility, except to the extent caused directly by any of the Company Indemnified Parties prior to the effective date hereof;
(vii) any liability asserted against any Company Indemnified Party arising directly or indirectly out of the Facility or related to the Facility other than liabilities caused directly by any Company Indemnified Party prior to the effective date hereof and where the action giving rise to such liabilities is outside of the scope of activities contemplated by and permitted under and any and all documents and/or agreements signed by AH Owner, AH CGP, AH Subordinated, AH Investor, BLCI, or their Affiliates, which are related to the acquisition, development or management of the Facility;
(viii) any foreclosure or other action by any creditor of the Purchaser, BLCI or any Affiliate of BLCI against any Company Indemnified Parties or the Facility;
(ix) the breach of any representation, warranty or covenant regarding Environmental Laws set forth in any document evidencing financing provided to AH Owner, AH CGP, AH Subordinated, AH Investor or any Company Indem...
