Additional Limitations on Indemnification. 10.4.1. The amount of any Losses suffered, sustained or incurred by any Indemnified Party shall be reduced by the amount such Indemnified Party actually recovers (after deducting all attorneys’ fees, expenses and other costs of recovery (including any deductible amount), any resultant increase in insurance premiums of the Indemnified Party) from any insurer (excluding coverage under any self-insurance or captive insurance) or other Person then liable for such Losses and, in the case of Tax related items on Schedule 10.2.1(d) or Schedule 10.2.1(e), amounts already taken into account in determining the Final Working Capital Amount or Estimated Taxes Payable and amounts paid pursuant to Sections 8.8.6(b) and (c). No Indemnified Party shall be permitted to recover Losses in respect of a claim for which such Indemnified Party has otherwise been compensated for such matter pursuant to, or the Loss was taken into account under, any other provision of this Agreement, so as to avoid duplication or “double counting” of the same Loss. 10.4.2. If any Indemnified Party receives any amounts under insurance coverage or from any Person with respect to Losses sustained at any time subsequent to any payment to such Indemnified Party pursuant to this Article 10 then such Indemnified Party shall promptly reimburse the applicable Indemnifying Parties for any payment made up to such amount received under insurance coverage with respect to such Losses (subject to the limitations set forth in Section 10.4.1 above). 10.4.3. In connection with any Losses for which a Buyer Indemnified Party makes a claim, such Buyer Indemnified Party agrees to promptly submit the claim for such Losses against insurance coverage (including the R&W Insurance Policy and any environmental policy or policies) maintained by such Buyer Indemnified Party, to the extent such Buyer Indemnified Party reasonably concludes that coverage may be available thereunder. Following the submission of such claim for Losses, the Buyer Indemnified Parties covenant and agree to use good faith commercially reasonable efforts to recover the fullest extent of the Losses.
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Samples: Securities Purchase Agreement (Carlisle Companies Inc)
Additional Limitations on Indemnification. 10.4.1. Notwithstanding anything contained herein to the contrary:
(a) The amount of any Losses suffered, sustained or incurred by any to which either an Indemnified Party may be entitled to be indemnified against and reimbursed for under this Article X shall be reduced by the amount such take into account (i) any indemnity or other recovery under any contract, agreement or understanding between an Indemnified Party actually recovers and any third party, (after deducting all attorneys’ feesii) any insurance proceeds received by an Indemnified Party with respect to such Losses, expenses and other costs (iii) the federal, state and local tax consequences of recovery (including any deductible amount), any resultant increase in insurance premiums of the Indemnified Party) from any insurer (excluding coverage under any self-insurance or captive insurance) or other Person then liable for such Losses and, in the case and of Tax related items on Schedule 10.2.1(d) or Schedule 10.2.1(e), amounts already taken into account in determining the Final Working Capital Amount or Estimated Taxes Payable and amounts paid pursuant to Sections 8.8.6(b) and (c). No Indemnified Party shall be permitted to recover Losses received in respect of a claim for which such Indemnified Party has otherwise been compensated for such matter pursuant tolosses, or the Loss was taken into account under, any other provision of this Agreement, so as to avoid duplication or “double counting” of the same Loss.
10.4.2. If any Indemnified Party receives any amounts under insurance coverage or from any Person with respect to Losses sustained at any time subsequent to any payment to such Indemnified Party including payments pursuant to this Article 10 then X. The parties shall cooperate with each other with respect to making claims under a contract, agreement or understanding between the Buyer and any third parties, related to the Company, which contract, agreement or understanding provides indemnification or similar rights for the benefit of the Buyer. Nothing herein is intended to allow and Sellers may not receive insurance proceeds which exceed the amount of the indemnified claim(s).
(b) Except as set forth in Section 10.4, no Indemnifying Party shall be liable hereunder for any special, consequential, punitive or loss of opportunity damages of any kind or nature (other than for any such damages actually incurred by an Indemnified Party to an unaffiliated third party).
(c) Attorney, consultant, and other professional fees and disbursements incurred by an Indemnified Party in connection with this Article X shall promptly reimburse be reasonable and based only on time actually spent which shall be charged at no more than such professional’s standard hourly rate.
(d) If the applicable Indemnifying Parties for Party makes any payment made up under this Article X with respect to any Losses, the Indemnifying Party shall be subrogated, to the extent of such amount received under insurance coverage payment, to the rights of the Indemnified Party against any insurer or other party with respect to such Losses (subject Losses, and the Indemnified Party shall assign to the limitations set forth in Section 10.4.1 above).
10.4.3. In connection Indemnifying Party any and all rights with any Losses for respect to which a Buyer Indemnified Party makes a claim, such Buyer Indemnified Party agrees to promptly submit the claim for such Losses against insurance coverage (including the R&W Insurance Policy and any environmental policy or policies) maintained by such Buyer Indemnified Party, to the extent such Buyer to which indemnification shall have been sought or made under this Agreement, and the Indemnified Party reasonably concludes shall not take any action which directly or indirectly would affect such claims that coverage the Indemnifying Party may have with respect thereto and shall cooperate fully with the Indemnified Party in pursuing such claims.
(e) No claim for breach of Section 4.10 may be available thereunder. Following the submission of such claim for Losses, made by the Buyer Indemnified Parties covenant until one hundred eighty (180) days after the Closing Date and agree to use good faith commercially reasonable efforts to recover the fullest extent of the Lossesthen only if such Accounts Receivable has not been collected by such date.
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Additional Limitations on Indemnification. 10.4.1. The Parties liability for indemnification under this Section 11 shall be further limited and be subject to the following:
(i) In determining the amount of the Buyer Parties’ Damages for purposes of this Section 11, such Damages shall not include any amounts finally determined by the Parties pursuant to the procedures set forth in Section 3.3, Section 3.5 or Section 3.6 that is paid by Sellers to the Buyer Parties.
(ii) In determining an Indemnitee’s Damages hereunder, to the extent that any Claim is covered by insurance, the Indemnitee shall be entitled to indemnification with respect to the amount of any Losses sufferedClaim that is in excess of the cash proceeds actually received by such Indemnitee (after deducting reasonable costs and expenses incurred in connection with the recovery of such insurance proceeds, sustained or incurred by any Indemnified Party including premium increases) pursuant to such insurance.
(iii) Each Claim shall be reduced by the amount such Indemnified Party actually recovers (after deducting all attorneys’ feesany indemnity, expenses and contribution or other costs of recovery (including similar payment received by any deductible amount), any resultant increase in insurance premiums of the Indemnified Party) Indemnitee from any insurer (excluding coverage under any self-insurance or captive insurance) or other Person then liable for such Losses and, in the case of Tax related items on Schedule 10.2.1(d) or Schedule 10.2.1(e), amounts already taken into account in determining the Final Working Capital Amount or Estimated Taxes Payable and amounts paid pursuant to Sections 8.8.6(b) and (c). No Indemnified Party shall be permitted to recover Losses in respect of a claim for which such Indemnified Party has otherwise been compensated for such matter pursuant to, or the Loss was taken into account under, any other provision of this Agreement, so as to avoid duplication or “double counting” of the same Loss.
10.4.2. If any Indemnified Party receives any amounts under insurance coverage or from any Person with respect to Losses sustained at any time subsequent to any payment to such Indemnified Party pursuant to this Article 10 then such Indemnified Party shall promptly reimburse the applicable Indemnifying Parties for any payment made up to such amount received under insurance coverage third party with respect to such Losses Claim and, if any Indemnitee recovers from third parties all or any part of any indemnification payments previously paid to it by the Indemnitor (subject to and even if such recovery occurs after the limitations expiration of the time limit for the survival of such Claim set forth in Section 10.4.1 above11.5 or 11.6, as applicable), the applicable Indemnitee shall, within ten (10) business days, pay over to the Indemnitor the amount so recovered.
10.4.3. In connection with (iv) Each Claim shall be reduced by an amount equal to any Losses cash reduction of the Taxes paid by an Indemnitee attributable to such Claim.
(v) No Party shall have any obligation to indemnify any other Parties for which a Buyer Indemnified Party makes a claim, such Buyer Indemnified Party agrees to promptly submit the claim for such Losses against insurance coverage (including the R&W Insurance Policy and any environmental policy or policies) maintained by such Buyer Indemnified Party, Claim to the extent such Buyer Indemnified Party reasonably concludes Claim results from a breach of a representation or warranty that coverage may would not have occurred but for the passing of, or any change in, after the Closing, any Law or Order, even if such change in Law or Order has a retroactive effect.
(vi) Notwithstanding anything contained herein to the contrary, the Sellers shall be available thereunder. Following severally, and not jointly, liable for any violation of the submission provisions of Section 9.5, such that no Seller shall be liable (whether under this Section 11 or otherwise) for any breach of such claim for Losses, the Buyer Indemnified Parties covenant and agree to use good faith commercially reasonable efforts to recover the fullest extent of the LossesSection 9.5 by any other Seller.
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Additional Limitations on Indemnification. 10.4.1. The amount (a) No Buyer Indemnitee will be entitled to indemnification pursuant to Section 9.1 for any special, punitive or exemplary damages; provided, however, that this Section 9.5(a) will not apply to any claim asserted in an Action by a third party against an Indemnified Party.
(b) Any indemnifiable Loss hereunder will be calculated net of any Losses suffered, sustained or incurred (i) amounts actually recovered by any the Indemnified Party shall be reduced under insurance policies, (ii) actual reduction in cash Taxes otherwise payable by the amount such Indemnified Party arising from the incurrence of payment of any such Losses for the Tax year in which such Losses arise, calculated based on the excess of the Tax liability of such Indemnified Party if the applicable Tax items were not included on its Tax Returns over such Indemnified Party's actual Tax liability for such year, and (iii) amounts actually recovers (after deducting recovered by the Indemnified Party from third parties pursuant to indemnification or otherwise. If the Indemnifying Party makes any payment on any claim pursuant to Section 9.1, the Indemnifying Party will be subrogated, to the extent of such payment, to all attorneys’ fees, expenses rights and other costs of recovery (including any deductible amount), any resultant increase in insurance premiums remedies of the Indemnified PartyParty to any insurance benefits or other claims of the Indemnified Party with respect to such claim.
(c) Notwithstanding anything in this Agreement to the contrary, no Buyer Indemnitee will be indemnified for any Loss to the extent (i) arising or resulting from any insurer change in applicable Law or accounting principles from and after the date of this Agreement, (excluding coverage under any self-insurance or captive insuranceii) or other Person then liable for such Losses and, in the case of Tax related items on Schedule 10.2.1(d) or Schedule 10.2.1(e), amounts already taken into account in determining the Final Working Capital Amount or Estimated Taxes Payable and amounts paid pursuant to Sections 8.8.6(b) and (c). No Indemnified Party shall be permitted to recover Losses in respect of a claim for which such Indemnified Party has that Buyer Indemnitees have otherwise been compensated for such matter pursuant to, or the Loss was taken into account under, any other provision of this Agreement, so as to avoid duplication or “double counting” of the same Loss.
10.4.2. If any Indemnified Party receives any amounts under insurance coverage or from any Person with respect to Losses sustained at any time subsequent to any payment to such Indemnified Party pursuant to this Article 10 then such Indemnified Party shall promptly reimburse IX, or (iii) to the applicable Indemnifying Parties for extent that reserves exist therefor on the Final Closing Balance Sheet.
(d) In the event the Closing occurs and any Company Interest Holder (either before or after Closing) has made (or is required to make) any payment (including any payment made up from the Escrow Fund) to any Buyer Indemnitee in satisfaction of all or some of its indemnification obligation hereunder, in no event will any Company Interest Holder (or any Affiliate thereof) or any Company Indemnitee be entitled to seek indemnification or contribution (or any similar theory) from the Company or its Subsidiaries (including any of officers, directors, employees, agents, shareholders and Affiliates of the Company or its Subsidiaries) in respect of any such amount received under insurance coverage with respect payments made (or required to be made) by such Losses Company Interest Holder (subject to the limitations set forth in Section 10.4.1 aboveor any Affiliate thereof).
10.4.3. In connection with any Losses for which a Buyer Indemnified Party makes a claim, such Buyer Indemnified Party agrees to promptly submit (e) Without limiting the claim for such Losses against insurance coverage (including the R&W Insurance Policy and any environmental policy generality or policies) maintained by such Buyer Indemnified Party, to the extent such Buyer Indemnified Party reasonably concludes that coverage may be available thereunder. Following the submission of such claim for Losses, the Buyer Indemnified Parties covenant and agree to use good faith commercially reasonable efforts to recover the fullest extent effect of the Lossesforegoing, in no event will Buyer be entitled to indemnification pursuant to Section 9.1(a)(vi) unless and until the indemnifiable Losses pursuant to such Section 9.1(a)(vi) exceed the aggregate amount of all reserves for Retained Liabilities that are reflected in the Final Closing Date Balance Sheet. Section 2.4(a) of the Company Disclosure Letter shows the amounts of reserves for Retained Liabilities (which will be aggregated for purposes of this Section 9.4(e)), that are included on the balance sheet included in the Unaudited Financial Statements.
(f) Neither the existence of nor any payment from the Costs Escrow will affect any Company Indemnitee’s rights or obligations hereunder.
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Additional Limitations on Indemnification. 10.4.1. The amount of any Losses suffered, sustained or incurred by any Indemnified Party shall be reduced by the amount such Indemnified Party actually recovers (after deducting all attorneys’ fees, expenses and other costs of recovery (including any deductible amount), any resultant increase in insurance premiums of the Indemnified Party) from any insurer (excluding coverage under any self-insurance or captive insurance) or other Person then liable for such Losses and, in the case of Tax related items on Schedule 10.2.1(d) or Schedule 10.2.1(e), amounts already taken into account in determining the Final Working Capital Amount or Estimated Taxes Payable and amounts paid pursuant to Sections 8.8.6(b) and (c). No Indemnified Party shall be permitted to recover Losses in respect of a claim for which such Indemnified Party has otherwise been compensated for such matter pursuant to, or the Loss was taken into account under, Notwithstanding any other provision of this Agreement, so as to avoid duplication or “double counting” of the same Loss.:
10.4.2. If any (a) Individual Claim Threshold; Deductible; Cap
(i) No Purchaser Indemnified Party receives any amounts shall make an indemnity claim under insurance coverage or from any Person Section 9.2 with respect to any individual occurrence unless and until the aggregate amount of Losses sustained at any time subsequent suffered by the Purchaser Indemnified Parties arising from such occurrence exceeds or may reasonably be expected to any payment to such Indemnified Party pursuant to this Article 10 then such exceed $15,000.
(ii) No Purchaser Indemnified Party shall promptly reimburse be entitled to indemnification under Sections 9.2(a)(i), 9.2(b)(i), or 9.2(b)(v) unless the applicable Indemnifying Purchaser Indemnified Parties (collectively) have suffered or incurred Losses under such Sections aggregating to an amount in excess of $1,000,000 (the “Deductible”) whereupon the Purchaser Indemnified Parties shall be entitled to claim indemnification only for any payment made up to such the amount received under insurance coverage with respect to of such Losses in excess of the Deductible (subject to the other applicable limitations set forth herein); provided that the Deductible shall not apply to any Losses in Section 10.4.1 above)respect of either, (A) any inaccuracy in or breach of any Fundamental Representation or Tax Representation or (B) intentional fraud.
10.4.3. In connection (iii) The Sellers shall not have any liability with respect to the Special Indemnity Matters for any Losses for which a Buyer Indemnified Party makes a claimamount in excess of $18,500,000, such Buyer Indemnified Party agrees to promptly submit the claim for such Losses against insurance coverage (including the R&W Insurance Policy and any environmental policy or policies) maintained by such Buyer Indemnified Party, provided to the extent the source of liability is the Special Indemnity Matters described in Section 9.2(b)(v), such Buyer Indemnified Party reasonably concludes that coverage may maximum amount shall be available thereunder. Following increased to $23,500,000, in either case in the submission aggregate (which applicable amount includes, for the avoidance of such claim for Lossesdoubt, the Buyer payment to Purchaser Indemnified Parties covenant and agree to use good faith commercially reasonable efforts to recover the fullest extent in full of the LossesIndemnity Escrow Amount).
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Samples: Stock and Membership Interest Purchase Agreement (Cott Corp /Cn/)
