Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Seller Indemnitees”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and expenses reasonably incurred) (collectively, “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV of this Agreement or (iii) a breach of any agreement or covenant of Buyer in this Agreement or otherwise. (b) Buyer’s obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations: (i) In the absence of fraud or willful misconduct, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate and, in such event, indemnification shall be made by Buyer for all claims in excess of such amount, up to a maximum of $16.0 million; (ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and (iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable Indemnity Period.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Utstarcom Inc), Asset Purchase Agreement (3com Corp)
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer shall indemnify and hold harmless Seller Group and its their directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “"Seller Indemnitees”") from and against all liability, demands, claims, actions or causes of action, assessments, penalties, fines, settlements, judgments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ ' fees and expenses reasonably incurredexpenses) (collectively, “"Seller Damages”") asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach by Buyer of any representation or warranty contained in Article IV of this Agreement Agreement, in each case, without regard to qualifications for materiality or (iii) material adverse effect or a breach by Buyer of any agreement or covenant of Buyer in this Agreement or otherwise.
Agreement. Seller agrees that the indemnification provided in this Section 7.3 is the exclusive remedy for a breach by Buyer of the items listed in (bi) and (ii) above of this paragraph. Buyer’s 's obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a7.3(a)(i) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no : No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim (other than the right to indemnification for indemnification with respect to a breach of a representation the representations under Sections 4.2, 4.3 and 4.12, which shall not be limited as to the amount of the claim or warranty until the time at which any claim may be brought under this Agreement) unless the aggregate amount of Seller Damages under such all claims under this Article VII exceeds an amount equal to $1,000,000 in 500,000 and then only to the aggregate and, in such event, indemnification shall be made by Buyer for all claims in excess extent of such amount, up to a maximum of $16.0 million;
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible thereforexceed $500,000. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and to for which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any the applicable Indemnity PeriodPeriod in the event that an Indemnity Period applies to such Seller Damages. Any written notice delivered by a Seller Indemnitee to Buyer with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount thereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Penn Virginia Resource Partners L P)
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth hereinin this Agreement, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “"Seller Indemnitees”") from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ ' fees and expenses reasonably incurredexpenses) (collectively, “"Seller Damages”") asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a any breach of any representation or warranty contained made by the Buyer in Article IV of this Agreement and the Ancillary Agreements; (ii) any failure by the Buyer to perform any agreement, covenant or obligation of the Buyer pursuant to this Agreement; or (iii) a breach of or any agreement or covenant liability of Buyer in this Agreement resulting from acts occurring on or otherwiseafter the Closing Date related to its ownership and use of the Assets or the Acquired Factories including the Assumed Liabilities.
(ba) Buyer’s obligations 's obligation to indemnify the Seller Indemnitees pursuant to clause (iiunder Section 10.3(a) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are is subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until unless the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate 375,000 and, in such event, indemnification shall be made by Buyer for all claims in excess only to the extent that the aggregate amount of such amount, up to a maximum of Seller Damages exceeds $16.0 million375,000;
(ii) In no event shall Buyer's aggregate obligation to indemnify the Seller Indemnitees exceed $5,000,000;
(iii) The amount of any Seller Damages shall be reduced by (A) any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or to such Seller Damages from any other party (excluding insurance coverage) alleged to be responsible therefor. for such Seller Indemnitees shall use commercially reasonable efforts Damages and (B) the amount of any Tax benefit available to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a the Seller Indemnitee receives an amount under insurance coverage or from such other party with respect relating to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amountDamages; and
(iiiiv) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given Buyer written notice thereof of prior to the end of any applicable Indemnity the Survival Period. Any written notice delivered by a Seller Indemnitee to the Indemnifying Party with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount of such claim.
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to After the terms and conditions set forth herein, from and after the ClosingClosing Date, Buyer and SmarTalk shall indemnify jointly and severally indemnify, defend and hold harmless Seller and Seller, its officers, directors, officers, employees, employees and affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Seller Indemnitees”"Buyer Indemnified Parties") against and in respect of any and all actual Losses regardless of whether any action has been filed or asserted against any Buyer Identified party arising from, in connection with or resulting from (a) any breach by Buyer or SmarTalk of representations and against all liabilitywarranties contained in Section 5.4 hereof (such breach to be determined, demands, claims, actions or causes in the case of action, assessments, losses, damages, costs those representations and expenses (includingwarranties that are qualified by materiality, without limitationregard to such qualification) or any breach by Buyer or SmarTalk of their covenants and agreements made in this Agreement that survive the Closing, attorneys’ fees provided that (w) Buyer and expenses reasonably incurred) (collectively, “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or arising out of SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) only to the extent that the aggregate actual Losses (as adjusted pursuant to Section 9.6 hereof) to the Buyer Indemnified Parties arising from, in connection with or resulting from such breaches exceed Five Hundred Thousand Dollars ($500,000), (x) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) in an aggregate amount in excess of Two Million Dollars ($2,000,000), (y) neither Buyer nor SmarTalk shall be required to indemnify the Buyer Indemnified Parties pursuant to this clause (i) for any breach of which the actual Losses (as adjusted pursuant to Section 9.6 hereof) arising from, in connection with or resulting from any individual case amount to Twenty-Five Thousand Dollars ($25,000) or less, and such Losses shall not be included in calculating the Five Hundred Thousand Dollar ($500,000) threshold established in the preceding subclause (w), and (z) any claim for indemnification under this clause (i) must be made in writing to Buyer and SmarTalk by Seller within one (1) year following the Closing Date; (b) the conduct of the Prepaid Phone Card Business from and after the Closing Date, except with respect to an Excluded Liability; (c) any Assumed LiabilitiesLiability; and (d) any of the Assets (i) arising on or after Closing, (ii) a breach arising from any contracts or agreements entered into by Buyer or SmarTalk or employees of any representation Buyer or warranty contained in Article IV of this Agreement SmarTalk, or (iii) a breach of arising from or in any agreement or covenant way related to the activities of Buyer in this Agreement or otherwiseSmarTalk or the operation of their respective businesses.
(b) Buyer’s obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate and, in such event, indemnification shall be made by Buyer for all claims in excess of such amount, up to a maximum of $16.0 million;
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable Indemnity Period.
Appears in 1 contract
Samples: Asset Purchase Agreement (Smartalk Teleservices Inc)
Buyer’s Agreement to Indemnify. (a) Subject to Upon the terms and subject to the conditions set forth hereinin this Agreement, from and after the Closing, the Buyer shall indemnify and hold harmless the Seller and its directors, officers, employees, affiliates, controlling personsAffiliates, agents and representatives and their successors and assigns (collectively, the “Seller Indemnitees”) from and against all liabilityliabilities, demands, claims, deficiencies, actions or causes of action, assessments, losses, damages, costs and expenses (includingincluding without limitation interest, without limitationpenalties, reasonable attorneys’ fees and expenses reasonably incurredand all reasonable amounts paid in settlement of any of the foregoing) (collectively, “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or to the extent arising out of or resulting from the following: (i) the Assumed Liabilities, (ii) a any breach of any representation or warranty contained of the Buyer in Article IV this Agreement; (ii) any breach or nonfulfillment of any covenant, agreement or other obligation of the Buyer in this Agreement or Agreement; and (iii) a breach the ownership or operation of any agreement or covenant of Buyer in this Agreement or otherwisethe Company, the Company Business and the Rigs after Closing.
(b) Buyer’s obligations The obligation of the Buyer to indemnify the Seller Indemnitees pursuant to clause (ii) of under Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are 7.3 is subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by the Buyer with respect pursuant to any claim for indemnification with respect to a breach clause (i) of a representation or warranty until Section 7.3(a) unless the aggregate amount of Seller Damages under subject to such clauses exceeds the Threshold Amount; provided, however, that any Seller Damages that individually total less than $100,000 (“De Minimis Seller Losses”) shall be excluded in their entirety for all purposes, including counting towards fulfillment of the Threshold Amount, and the Seller in no event shall have any liability hereunder to any Buyer Indemnitees for any such De Minimis Seller Losses; and provided, further, that claims exceeds an amount equal for Seller Damages pursuant to Section 7.3(a) resulting from fraud or a breach of the Fundamental Representations made by the Buyer shall not be subject to the Threshold Amount, and shall be recoverable from the first dollar. This Section 7.3(b)(i) shall not apply to claims for indemnification made pursuant to clauses (ii) and (iii) of Section 7.3(a).
(ii) In no event shall the Buyer’s aggregate obligation to indemnify the Seller Indemnitees pursuant to clauses (i) of Section 7.3(a) exceed $1,000,000 40,000,000 in the aggregate andprovided, in such eventhowever, indemnification that this limitation shall be not apply to claims for Seller Damages pursuant to Section 7.3(a) resulting from fraud or a breach of the Fundamental Representations made by Buyer the Buyer. This Section 7.3(b)(ii) shall not apply to claims for all claims in excess indemnification made pursuant to clauses (ii) and (iii) of such amount, up to a maximum of $16.0 million;Section 7.3(a).
(iiiii) The amount of any Seller Damages shall be reduced by any amount actually directly or indirectly received by a Seller Indemnitee with respect thereto to such Seller Damages under any insurance coverage (other than self insurance) or from any other party alleged to be responsible thereforfor such Seller Damages less any expenses of recovery, deductibles and/or co-payments. The Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee directly or indirectly receives an any amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by the Buyer pursuant to under this Section 7.3, then such Seller Indemnitee shall promptly reimburse the Buyer for any payment made or expense incurred by the Buyer, or for the benefit of, the Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of Indemnitee less any expenses incurred by such Seller Indemnitee in collecting such amountof recovery, deductibles and/or co-payments; and
(iiiiv) The Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given the Buyer written notice thereof prior to the end of any the applicable Indemnity Survival Period. Any written notice delivered by a Seller Indemnitee to the Buyer with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount of such claim.
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions limitations set forth hereinin this Agreement, from and after the Closing, the Buyer shall indemnify and hold harmless Seller the Sellers and its directorsthe Target’s managers, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (each, a “Seller Indemnified Party” and collectively, the “Seller IndemniteesIndemnified Parties”) from and against all from and against all liability, demands, claims, actions or causes of action, suits, proceedings, hearings, investigations, charges, complaints, injunctions, judgments, orders, decrees, rulings, assessments, losses, damages, costs dues, penalties, fines, costs, amounts paid in settlement, obligations, taxes, liens and expenses (including, without limitation, reasonable attorneys’ fees and expenses reasonably incurredexpenses) (collectively, the “Seller Damages”) asserted against or incurred by any Seller Indemnitee Indemnified Party as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV of this Agreement or (iii) a breach of any agreement or covenant of the Buyer contained herein. The Sellers agree that the indemnification provided in this Agreement Section 6.3 is the exclusive remedy for a breach by the Buyer of any representation, warranty, agreement or otherwisecovenant contained in this Agreement.
(b) The Buyer’s obligations to indemnify the Seller Indemnitees Indemnified Parties pursuant to clause (ii) of Section 7.3(a6.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by the Buyer with respect to any claim for indemnification with respect made pursuant to a breach of a representation or warranty until Section 6.3(a)(ii) unless the aggregate amount of Seller Damages under such all claims exceeds an amount equal to $1,000,000 in the aggregate Basket Amount and, in such event, indemnification shall be made by the Buyer for all Seller Damages (including all claims under the Basket Amount); provided, however, that the foregoing limitations shall not apply to any breach of any representation or warranty contained in excess of such amount, up to a maximum of $16.0 millionany Excluded Representation;
(ii) The amount In no event shall the Buyer’s aggregate obligation to indemnify the Seller Indemnified Parties as a result of a breach of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) representation or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives warranty exceed an amount under insurance coverage or from such other party with respect equal to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amountCap; and
(iii) Buyer Notwithstanding anything to the contrary contained herein, the indemnification obligations under Section 6.3 shall be obligated to indemnify not limit the right of the Seller Indemnitees only for those claims with respect Indemnified Parties to a breach of a representation or warranty giving rise to recover Seller Damages and to which result from or arise out of actual fraud by the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable Indemnity PeriodBuyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Higher One Holdings, Inc.)
Buyer’s Agreement to Indemnify. (a) Subject to Upon the terms and subject to the conditions set forth herein, from and after the Closingof this Article XI, Buyer shall indemnify indemnify, defend and hold harmless Seller Seller, its Affiliates and its their respective officers, directors, officersand employees ("Seller Indemnified Parties"), employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Seller Indemnitees”) from and against all liabilityDamages asserted against, demandsresulting to, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and expenses reasonably incurred) (collectively, “Seller Damages”) asserted against imposed upon or incurred by any Seller Indemnitee as a result Indemnified Parties by reason of or arising out of from: (i) the Assumed Liabilities, (iia) a breach of any representation or warranty of Buyer contained in Article IV of this Agreement or in any certificate delivered by or on behalf of Buyer hereunder; (iiib) a breach of any agreement or covenant of Buyer in this Agreement or otherwise.
(b) Buyer’s obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject (other than a breach of Buyer’s covenants set forth in Section 6.1(e), which shall be governed by the terms of Section 6.1(e)); (c) any liability or obligation of the Company, the Division Subsidiaries, or the Division to the following limitations:
extent relating to the operation of the Business prior to the Closing (to the extent reflected in the Year-End Pro Forma Financial Statements, disclosed in the Disclosure Letter, or incurred in the ordinary course of business after January 1, 2007) or the operation of the Business after the Closing, but excluding any liability or obligation or Damages arising out of or relating to (i) In the absence of fraud or willful misconductRetained Litigation, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate and, in such event, indemnification shall be made by Buyer for all claims in excess of such amount, up to a maximum of $16.0 million;
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3the Unrelated Liabilities, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iii) any breach of representation, warranty or covenant by Seller and/or (iv) any other matter for which Seller has agreed to indemnify Buyer (collectively, "Division Liabilities"); (d) any liability or obligation resulting from any Guaranty referred to in Section 2.5 hereof to the extent arising or incurred after the Closing including under (i) any Guaranty referred to in Section 2.5 hereof for which Buyer shall not have caused itself to be obligated substituted in all respects for Seller as of Closing, and (ii) any liability or obligation under a Backup Guaranty to indemnify Seller; or (e) any liability for any Indebtedness included in the Indebtedness Adjustment Amount (collectively, "Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable Indemnity PeriodClaims").
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, the Buyer shall indemnify indemnify, defend and hold harmless Seller the Sellers and its directorstheir respective managers, officers, employees, affiliatesAffiliates, controlling personsPersons, agents and representatives and their respective successors and assigns (collectively, the “Seller Indemnitees”) from and against all liabilityliabilities, obligations, demands, claims, actions or causes of action, assessments, losses, damages, deficiencies, Taxes, penalties, fines, fees, costs (including court costs) and expenses (including, without limitation, including reasonable attorneys’ fees and expenses reasonably incurredand all reasonable amounts paid in connection with the investigation, defense or settlement of any of the foregoing) (collectively, “Seller Damages” and, together with Buyer Damages, “Damages”) asserted against against, sustained or incurred by any Seller Indemnitee as a result of or to the extent arising out of or resulting from:
(i) the Assumed Liabilities, (ii) a breach of any representation or warranty of the Buyer contained in Article IV V of this Agreement or in any Transaction Document when made or at and as of the Closing Date (iiior at and as of such different date or period specified for such representation or warranty) as though such representation and warranty were made at and as of the Closing Date (or such different date or period);
(ii) a breach or nonperformance of any covenant or agreement or covenant of the Buyer contained in this Agreement or otherwiseany of the Transaction Documents to be performed by Buyer;
(iii) the Assumed Liabilities.
(b) The Buyer’s obligations obligation to indemnify the Seller Indemnitees pursuant to clause (iiSection 9.3(a) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are is subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no indemnification pursuant to this Section 7.3 shall be made by the Buyer with respect pursuant to any claim for indemnification with respect to a breach of a representation or warranty until Section 9.3(a)(i) unless the aggregate amount of Seller Damages under such for all claims pursuant to Section 9.3(a)(i) exceeds an amount equal to $1,000,000 in the aggregate Basket and, in such event, indemnification shall be made by the Buyer for all claims in excess Seller Damages only to the extent of such amountexcess; provided, up however, that the Basket shall not apply with respect to a maximum any breach of $16.0 millionany of the Fundamental Representations made by the Buyer or with respect to any Seller Damages arising from or relating to Fraud Claims;
(ii) The in no event shall the Buyer’s aggregate obligation to indemnify the Seller Indemnitees pursuant to Section 9.3(a)(i) exceed the Cap; provided, however, that the Cap shall not apply with respect to any breach of any of the Fundamental Representations made by the Buyer or with respect to any Seller Damages arising from or relating to Fraud Claims;
(iii) the amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) with respect to, or from any other party alleged to be responsible therefor. for, such Seller Indemnitees shall use commercially Damages, less any reasonable efforts to collect any amounts available under costs and expenses incurred by such insurance coverage and from Seller Indemnitee in connection with the receipt or realization of such other party alleged to have responsibilityamount or benefit. If a Seller Indemnitee actually receives an any amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by the Buyer pursuant to this Section 7.39.3, then such Seller Indemnitee shall promptly reimburse the Buyer for any payment made or expense incurred by the Buyer in connection with providing such indemnification up in an amount equal to such the amount actually received by the Seller Indemnitee, but Indemnitee (net of any reasonable costs and expenses incurred by such Seller Indemnitee in collecting connection with the receipt of such amount); and
(iiiiv) the Buyer shall be obligated to indemnify the Seller Indemnitees pursuant to Section 9.3(a)(i) only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which any Seller Indemnitee has given the Seller Indemnitees have given Buyer written notice thereof prior to the end of the Applicable Survival Period. Any written notice delivered by any applicable Seller Indemnitee to the Buyer with respect to Seller Damages shall set forth the information required to be provided hereunder in connection with a Claim Notice or an Indemnity PeriodNotice, as applicable. The Basket and Cap shall not apply to any claims for indemnification by any Seller Indemnitee under Sections 9.3(a)(ii) and (iii).
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents officers and representatives employees and their successors and assigns (collectively, the “Seller Indemnitees”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses reasonably incurredexpenses, and whether or not arising from a third party claim) (collectively, the “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed LiabilitiesLiabilities or the use or ownership of the Assets after the Closing Date, (ii) a breach of any representation or warranty contained in Article IV of this Agreement or set forth therein, and (iii) a breach of any agreement or covenant of Buyer in this Agreement or otherwisecontained herein.
(b) Buyer’s obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect made pursuant to a breach of a representation or warranty until Section 7.3(a)(ii) unless the aggregate amount of Seller Damages under such all claims exceeds an amount equal to $1,000,000 in the aggregate Basket Amount and, in such event, indemnification shall be made by Buyer for all claims only to the extent Seller Damages exceed, in excess the aggregate, the Basket Amount, provided that the foregoing limitations or indemnification shall not apply to any Seller Damages related to any breach of such amount, up to a maximum the representations and warranties set forth in Section 4.1 (Organization and Authority of $16.0 millionBuyer);
(ii) In no event shall Buyer’s aggregate obligation to indemnify the Seller Indemnitees pursuant to Section 7.3(a)(ii), exceed an amount equal to the Cap, provided that the foregoing limitations or indemnification shall not apply to any Seller Damages related to any breach of the representations and warranties set forth in Section 4.1 (Organization and Authority of Buyer);
(iii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any third party insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall and Seller shall make commercially reasonable efforts to ensure that such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iiiiv) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable Indemnity Period, in the event that an Indemnity Period applies to such Seller Damages. Any written notice delivered by Seller Indemnitee to Buyer with respect to Seller Damages shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount thereof.
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Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer shall indemnify and hold harmless the Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Seller Indemnitees”) Indemnitees from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ ' fees and expenses reasonably incurredexpenses) (collectively, “Seller Damages”the "SELLER DAMAGES") asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV of this Agreement or Agreement, (iii) a breach of any agreement or covenant of Buyer contained herein or (iv) the use, operation or ownership of any of the Assets after Closing. Seller agrees that the indemnification provided in this Agreement Section 7.3 is the exclusive remedy for a breach by Buyer of any representation, warranty, agreement or otherwisecovenant contained in this Agreement. To the extent that Buyer's undertakings set forth in this Section 7.3 may be unenforceable, Buyer shall contribute the maximum amount that it is permitted to contribute under applicable law to the payment and satisfaction of all Seller's Damages incurred by the Seller Indemnitees.
(b) Buyer’s 's obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect made pursuant to a breach of a representation Section 7.3(a)(ii) or warranty until (iii) unless the aggregate amount of Seller Damages under such all claims exceeds an amount equal to $1,000,000 in the aggregate Basket Amount and, in such event, indemnification shall be made by Buyer for all claims only to the extent Seller Damages exceed, in excess of such amountthe aggregate, up to a maximum of $16.0 millionthe Basket Amount;
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any third party insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. If a Seller Indemnitee makes a claim for indemnification under this Section 7.3, Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and;
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable the Indemnity Period, in the event that the Indemnity Period applies to such Seller Damages. Any written notice delivered by a Seller Indemnitee to Buyer with respect to Seller Damages shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount thereof; and
(iv) Any indemnity amounts payable by Buyer to or on behalf of a Seller Indemnitee pursuant to this Agreement (including, without limitation, any indemnity payment made under this Article VII) shall be reduced by any Tax benefit arising from the claim, loss or damage for which the indemnity is being paid to the extent such Tax benefit is available in the year of payment or accrual.
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Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closingof this Article X, Buyer shall indemnify agrees to indemnify, defend and hold harmless harmless, Seller and its each member of the Operating Group, and the officers, directors, officersemployees and agents, employees, affiliates, controlling persons, agents and representatives and their successors and assigns of each of them (collectively, the “"Indemnified Seller Indemnitees”) Group"), from and against against, for, and in respect of any and all liabilityClaims and Losses asserted against, demandsarising out of, claimsrelating to, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and expenses reasonably incurred) (collectively, “Seller Damages”) asserted against imposed upon or incurred by any member of the Indemnified Seller Indemnitee as a result Group, directly or indirectly, by reason of or arising out of resulting from (i) the any Assumed Liabilities, Liabilities or (ii) any inaccuracy in or a breach by Buyer of any representation of its representations, warranties, covenants or warranty agreements contained in Article IV of this Agreement or (iii) a breach of any agreement or covenant of Buyer in this Agreement or otherwise(collectively "Seller Indemnified Claims" and, together with Buyer Indemnified Claims.
(b) Buyer’s obligations Notwithstanding anything to indemnify the contrary in Section 10.4(a) but subject to Section 10.4(c) below, (i) Buyer shall not be liable for Seller Indemnitees pursuant to clause Indemnified Claims arising under subsection 10.4(a)(ii) unless (A) the amount of such claim either individually, or together with any related claims, equals or exceeds $25,000 and (B) the aggregate of all Seller Indemnified Claims exceeds the Threshold Amount; provided, however, that when such claims equal or exceed the Threshold Amount, Buyer shall be liable for, and provide indemnification with respect to, the full amount of all such claims and (ii) of Buyer shall not be liable for Seller Indemnified Claims arising under Section 7.3(a10.4(a) hereof with respect (ii) exceeding in the aggregate U.S. $75 million.
(c) Notwithstanding anything to a breach of a representation or warranty contained the contrary in this Agreement are Section 10.4(a) and (b) above, in no event shall Seller Indemnified Claims arising under Section 10.4(a)(i) be subject to the following limitations:
(i) In the absence provision of fraud or willful misconduct, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate and, in such event, indemnification shall be made by Buyer for all claims in excess of such amount, up to a maximum of $16.0 million;
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable Indemnity Period10.4(b).
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Buyer’s Agreement to Indemnify. (a) Subject to the terms conditions and conditions provisions set forth herein, from and after the ClosingBuyer will defend, Buyer shall indemnify and hold harmless Seller Seller, and its directors, officers, employeesemployees and agents, affiliates, controlling persons, agents and representatives and their successors and assigns each of the Shareholders (collectively, the “"Seller Indemnitees”Affiliates") from against and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and expenses reasonably incurred) (collectively, “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV of this Agreement or (iii) a breach of any agreement or covenant of Buyer in this Agreement or otherwise.
(b) Buyer’s obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitationsof:
(i) In the absence of fraud Any and all loss, damage or willful misconductdeficiency resulting from any misrepresentation, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation warranty, or warranty until other violation of any of the aggregate amount covenants, warranties or representations contained in this Agreement or any documents executed herewith or the transactions contemplated hereby, or nonfulfillment of any agreement or any documents executed herewith or the transactions contemplated hereby, on the part of Buyer under this Agreement or from any misrepresentation in or omission from any certificate furnished to Seller Damages under such claims exceeds an amount equal to $1,000,000 or the Shareholders required in the aggregate and, in such event, indemnification shall be made by Buyer for all claims in excess of such amount, up to a maximum of $16.0 million;connection herewith.
(ii) The amount Any and all liabilities and obligations assumed by Buyer as provided herein as well as those liabilities and obligations of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party Buyer that arise after the Closing with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net operation of any expenses incurred by such Seller Indemnitee in collecting such amountthe Business after that date; and
(iii) Any and all claims, costs, damages, liabilities, deficiencies, losses or expenses suffered or incurred by any such party (whether as a result of third party claims (whether valid or not), demands, suits, causes of action, proceedings, investigations, judgments, assessments, liabilities or otherwise), including costs of investigation and defense and attorneys' fees assessed, incurred or sustained by or against any of them, with respect to or arising out of any of the foregoing.
(b) No indemnification shall be required to be made under this Section 7.3 for breaches of representations and warranties until the aggregate amount of damages incurred by the Seller Affiliates under this Section 7.3 for such breaches exceeds $35,000, and if such damages arising from such breaches exceed such amount then Buyer shall be obligated to indemnify the Seller Indemnitees only Affiliates for those claims with respect the full amount of such damages up to a breach and in excess of a representation or warranty giving rise the initial $35,000. It is further agreed that the liability of Buyer pursuant to Seller Damages this Section 7.3 for such breaches of representations and warranties shall be limited to which Claims (as defined below) asserted by the Seller Indemnitees have given Buyer written notice thereof prior to Affiliates within two years after the end of any applicable Indemnity PeriodClosing Date.
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Samples: Asset Purchase Agreement (Culp Inc)
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth hereinin this Agreement, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “"Seller Indemnitees”") from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ ' fees and expenses reasonably incurredexpenses) (collectively, “"Seller Damages”") asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV III of this Agreement or any closing certificate delivered by or on behalf of Buyer pursuant to this Agreement and (iiiii) a any breach of any agreement or covenant of the covenants and agreements of Buyer contained in this Agreement or otherwiseAgreement.
(b) Buyer’s obligations 's obligation to indemnify the Seller Indemnitees pursuant to clause (ii) of under Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are is subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until under Section 7.3(a)(i) unless the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate Basket Amount and, in such event, indemnification shall be made by Buyer for all claims in excess only to the extent that the aggregate amount of such amount, up to a maximum of $16.0 millionSeller Damages exceeds the Deductible Amount;
(ii) In no event shall Buyer's aggregate obligation to indemnify the Seller Indemnitees under Section 7.3(a)(i) exceed the Cap Amount, except in the event that such obligation to indemnify arises from the fraudulent act or omission of Buyer;
(iii) The amount of any Seller Damages shall be reduced by (A) any amount actually received by a Seller Indemnitee with respect thereto to such Seller Damages under any insurance coverage (other than self insurance) or from any other party alleged to be responsible thereforfor such Seller Damages (provided, however, that the amount of any such reduction for insurance proceeds shall be offset by the present value of any increase in insurance premiums attributable to any claim for insurance related to such Seller Damages) and (B) the amount of any Tax benefit actually realized by the Seller Indemnitee attributable to such Seller Damages (provided however, that the amount of any such reduction for Tax benefit shall be offset by any increased tax liability of the Seller Indemnitee as a result of inclusion in income of any part of payments made in respect of such Seller Damages, and that for purposes of determining the amount of any Tax benefit or detriment pursuant to this Section 7.3(b)(iii), the marginal combined federal and state income tax rate of the Seller Indemnitee shall be deemed to be forty percent (40%)). The Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an any amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to under this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred amounts paid by Buyer to the Seller Indemnitee in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iiiiv) Buyer shall be obligated to indemnify the Seller Indemnitees under Section 7.3(a)(i) only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given Buyer written notice thereof of prior to the end of the Survival Period. Any written notice delivered by a Seller Indemnitee to Buyer with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount of such claim. Subject to the procedures with respect to Claims under Section 7.4 hereof, if such written notice (or an amended notice) states the amount of Seller Damages claimed and Buyer notifies the Seller Indemnitee that Buyer does not dispute the claim described in such notice or fails to notify the Seller Indemnitee within 20 business days after delivery of such notice by the Seller Indemnitee whether Buyer disputes the claim described in such notice, Seller Damages in the amount specified in such notice will be admitted by Buyer, and Buyer will pay the amount of such Seller Damages to the Seller Indemnitee. If Buyer has timely disputed its liability with respect to such claim, Seller and Buyer will proceed in good faith to negotiate a resolution of such dispute in accordance with Section 8.6 hereof. If a written notice does not state the amount of Seller Damages claimed, such omission will not preclude the Seller Indemnitee from recovering from Buyer the amount of Seller Damages with respect to the claim described in such notice if any applicable Indemnity Periodsuch amount is promptly provided once determined.
(c) Buyer will pay the amount of any Seller Damages to the Seller Indemnitee within 10 business days following the determination of Buyer's liability for and the amount of Seller Damages (whether such determination is made pursuant to the procedures set forth in this Article VII, by agreement between Buyer and Seller, by arbitration award or by final adjudication in accordance with the terms of this Agreement).
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Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth hereinof this Article 7, from and after the Closing, Buyer shall indemnify agrees to indemnify, defend and hold harmless Seller and its Affiliates and their respective officers, directors, officers, employees, affiliatesshareholders, controlling personsagents, agents and representatives and their representatives, successors and assigns (collectively, the “Seller IndemniteesParties”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and expenses reasonably incurred) (collectively, “Seller Damages”) asserted against Losses suffered or incurred by any a Seller Indemnitee as a result of Party arising from, relating to or arising out otherwise in respect of (i) the all Assumed Liabilities, (ii) a any breach of any representation representations or warranty warranties contained in Article IV of this Agreement 5 hereof (disregarding any Material Adverse Effect or materiality qualifications set forth in the applicable representation or warranty), or (iii) a any breach by Buyer of any agreement or covenant of Buyer its covenants in this Agreement Agreement, or otherwise(iv) the use, application or disposition of the Purchased Assets after the Closing Date (collectively, “Seller Claims”).
(b) Buyer’s obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a) hereof with With respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
Section 7.2(a)(ii) and (iiii) In the absence of fraud or willful misconductabove, no indemnification pursuant to this Section 7.3 Seller Claim shall be made by Buyer with respect asserted until the aggregate amount which the Seller Parties would be entitled to any claim for indemnification with respect recover is equal to or greater than $50,000 in value, and the first $50,000, in the aggregate, of claims shall be excluded from Seller Claims. No individual Seller Claim of less than $15,000 (each a breach of a representation or warranty “Small Claim”) shall be asserted until the aggregate amount of Seller Damages under such claims all Small Claims exceeds an amount equal to $1,000,000 50,000 in value, and the first $50,000 in the aggregate and, in such event, indemnification of Small Claims shall be made by excluded from Buyer Claims for all claims purposes, including in excess calculating Seller Claims under the first sentence of such amountthis Section 7.2(b). Likewise, up to a maximum of $16.0 million;
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to indemnification arising out of Section 7.2(a)(ii) and (iii) above, no Seller Damages Claim shall be asserted or recognized if the amount of all Seller Claims recognized or paid at any time subsequent with respect to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
7.2(a)(ii) and (iii) Buyer above exceeds individually or in the aggregate 20% of the Purchase Price. provided, however that these limitations shall be obligated not apply to indemnify the any Seller Indemnitees only for those claims with respect to a Claim resulting from fraud, an inaccuracy or breach of a representation any Fundamental Representations or warranty giving rise an intentional failure by Buyer to Seller Damages and to which perform its obligations under this Agreement or the Seller Indemnitees have given Buyer written notice thereof prior to the end Related Agreements, including such failure by reason of any applicable Indemnity Periodan obstacle intentionally created by Buyer.
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Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer shall indemnify and hold harmless Seller and, if Seller shall be wound-up and its directorsdissolved or shall otherwise cease to exist, officers, employees, affiliates, controlling persons, agents and representatives the Seller Shareholders and their respective successors and assigns (collectivelyassigns, the “Seller Indemnitees”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ ' and accountant's fees and expenses reasonably incurredexpenses) (collectively, “collectively "Seller Damages”") asserted against or incurred by any Seller Indemnitee or the Seller Shareholders and their respective successors and assigns, as the case may be, as a result of of, relating to or arising out of the following:
(i) the Assumed Liabilities, (ii) a breach of any representation representation, warranty, obligation, covenant or warranty agreement contained in Article IV this Agreement;
(ii) any of the Assets or the Assumed Liabilities or any other obligation of Seller expressly assumed by Buyer under this Agreement or Agreement;
(iii) a breach any event, fact or condition relating to or arising from the ownership, control, management or operation of any agreement the Business or covenant the Assets or otherwise arising or occurring subsequent to the Closing Date, regardless of Buyer in this Agreement whether or otherwise.
(b) Buyer’s obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a) hereof with respect to not such events constitute a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate and, in such event, indemnification shall be made by Buyer for all claims in excess of such amount, up to a maximum of $16.0 millionhereunder;
(iiiv) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) liability or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer obligation for any payment made Taxes attributable to the business, operations, property, payroll or expense incurred by Buyer in connection with providing such indemnification up other matters attributable to such amount received by or involving the Seller Indemnitee, but net of Business or the Assets for any expenses incurred by such Seller Indemnitee in collecting such amounttaxable year or taxable period (or other portion thereof) beginning on or after the Closing Date; and
(iiiv) Buyer shall be obligated to indemnify any liability, fine or penalty imposed upon Seller or the Seller Indemnitees only Shareholders for those claims failure to comply with respect to a breach the provisions of a representation the Worker Adjustment and Retraining Act (29 U.S.C. 2101 et seq.); Connecticut General Statutes xx.xx. 31-51(n) and (o); the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act; or warranty giving rise to Seller Damages and to which for compliance with the Seller Indemnitees have given Buyer written notice thereof prior to the end provisions of any applicable Indemnity PeriodSection 5.3 hereof.
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Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer and the Railcar Subsidiaries shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Seller IndemniteesIndemnified Parties”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses reasonably incurredexpenses) (collectivelycollectively but without duplication, “Seller Damages”) asserted against or incurred by any Seller Indemnitee Indemnified Party as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty made by Buyer contained in Article IV of this Agreement Agreement, or (iiiii) a breach of any agreement or covenant of Buyer in this Agreement or otherwiseAgreement.
(b) Buyer’s obligations to indemnify the Seller Indemnitees Indemnified Parties pursuant to clause (ii) of Section 7.3(a8.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach under Section 8.3(a)(i), unless (a) the amount of a representation such claim (or warranty until the aggregate amount of related claims) exceeds $50,000 and (b) the aggregate amount of Seller Damages under such all claims exceeds an amount equal to $1,000,000 in the aggregate 750,000 and, in such event, indemnification shall be made by Buyer Seller only to the extent Seller Damages exceed in the aggregate an amount equal to $750,000, it being understood that such amount shall be a “deductible” for all claims in excess of such amount, up to a maximum of $16.0 millionBuyer;
(ii) In no event shall Buyer’s obligation to indemnify Seller Indemnified Parties under this Agreement exceed an amount equal to $10 million; provided, however, that the limitations set forth in Section 8.3(b)(i) and (ii) hereof shall not apply to any claim arising under Section 3.3;
(iii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee Indemnified Party with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees Indemnified Parties shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility; provided, that Seller Indemnified Parties shall not be required to take any actions they would not take in the absence of Buyer’s indemnification obligation as determined in good faith by Seller. If a Seller Indemnitee Indemnified Party receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.38.3, then such Seller Indemnitee Indemnified Party shall promptly reimburse Buyer Buyer, as the case may be, for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such the indemnified amount received by the Seller IndemniteeIndemnified Party, but net of any expenses incurred by such Seller Indemnitee Indemnified Party in collecting such amountamount and net of any amounts for which the Seller Indemnified Party was not indemnified pursuant to Section 8.3(b)(i) or (ii); and
(iiiiv) Buyer shall be obligated to indemnify the Seller Indemnitees Indemnified Parties only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees Indemnified Parties have given Buyer written notice thereof prior to the end of the Indemnity Period in the event that the Indemnity Period applies to such Seller Damages. Any written notice delivered by a Seller Indemnified Party to Buyer with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount thereof.
(v) Notwithstanding anything herein to the contrary, the limitations on Buyer’s obligation to indemnify the Seller Indemnified Parties provided under this Section 8.3(b) shall not apply to any applicable Indemnity Periodliabilities arising out of, or relating to, those liabilities acquired or retained by Buyer or the Railcar Subsidiaries pursuant to Section 1.l(c)(iii).
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives each of the Sellers and their respective heirs, successors and assigns (collectively, the “"Seller Indemnitees”") from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ ' fees and expenses reasonably incurredexpenses) (collectively, “collectively "Seller Damages”") asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV of this Agreement when made or at and as of the Closing as though such representations and warranties were made at and as of the Closing and (iiiii) a breach the operation of the business of the Company from and after the Closing, including any agreement or covenant liabilities of Buyer the Company incurred prior to the Closing that are provided for in this Agreement or otherwisethe Financial Statements.
(b) Buyer’s 's obligations to indemnify the Seller Indemnitees pursuant to clause (iii) of Section 7.3(a8.4(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconductExcept as otherwise expressly provided herein, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until Sellers unless the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate 50,000 and, in such event, indemnification shall be made by Buyer Buyers for all claims Seller Damages in excess of $50,000, it being understood that such amount, up to $50,000 shall be a maximum of $16.0 million;"deductible".
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification Except as otherwise expressly provided by Buyer pursuant to this Section 7.3herein, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable the Indemnity PeriodPeriod in the event that the Indemnity Period applies to such Seller Damages. Any written notice delivered by a Seller Indemnitee to Buyer with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount thereof.
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer shall indemnify indemnify, defend, reimburse, and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (each, a “Seller Indemnitee” and, collectively, the “Seller Indemnitees”) from and against all liability, demands, claims, actions or causes of actionLiabilities, assessments, lossesfines, Taxes, Losses, damages, amounts paid in settlement, defense costs, Liens, costs and expenses (includingincluding reasonable out-of-pocket attorneys’, without limitation, attorneys’ accountants and other experts fees and expenses reasonably incurredand or other expenses of Third Party Claims) (collectively, “Seller Damages”) incurred by, and all demands, claims, Actions or causes of action asserted against or incurred by against, any Seller Indemnitee as a result of or arising out of of:
(ia) the Assumed Liabilities, (ii) a breach or inaccuracy of any representation or warranty contained in Article IV of this Agreement or (iii) a breach of any agreement or covenant of made by Buyer in this Agreement or otherwise.any Transaction Document;
(b) Buyer’s obligations to indemnify Seller Indemnitees pursuant to clause (ii) the breach or violation of, or default under, any covenant, agreement or undertaking of Section 7.3(a) hereof with respect to a breach of a representation or warranty Buyer contained in this Agreement are subject to the following limitations:or any Transaction Document; and
(ic) In except as provided in Section 2.5, any Taxes of the absence of fraud Project Company for a Post-Closing Period or willful misconduct, no indemnification pursuant to this Section 7.3 shall be made by Buyer with a Post-Closing Taxable Period. With respect to any claim for indemnification with under this Agreement not resulting from a Third Party Claim, within ten (10) days after notification from a Seller Indemnitee setting forth the nature of the circumstances entitling the Seller Indemnitee to indemnity hereunder, Buyer shall diligently commence resolution of such matters in a manner reasonably acceptable to the Seller Indemnitee and shall diligently and timely prosecute such resolution to completion. With respect to a breach those claims that may be satisfied by payment of a representation or warranty until liquidated sum of money, including claims for reimbursement of expenses incurred in connection with any circumstances entitling any Seller Indemnitee to indemnity hereunder, Buyer shall pay the full amount so claimed to the extent supported by reasonable documentation within fifteen (15) days of such resolution. If Buyer by written notice to Seller disputes the right to indemnity of all Seller Indemnitees in connection with such claim, Buyer shall pay any undisputed part of such claim, and Buyer and Seller shall timely resolve any remaining dispute; provided that if any such remaining dispute is not resolved within thirty (30) days of Seller’s receipt of Buyer’s dispute notice, Seller may commence an Action pursuant to Section 8.14. The maximum aggregate amount of Seller Damages under such for which Buyer shall be liable with respect to claims exceeds an made pursuant to Section 6.3(a) (other than with respect to Seller Damages to the extent arising from or attributable to (i) fraud or willful misconduct by Buyer or the Project Company, for which no monetary limit shall apply or (ii) the breach of any Buyer Fundamental Representation, which is addressed below) shall be equal to seventy-five percent (75%) of the amount equal to $1,000,000 (x) the Purchase Price, minus (y) any amounts paid by Seller to Buyer pursuant to Sections 6.5.1 of the EPC Schedule, plus (z) any amounts paid by Buyer to Seller pursuant to Section 6.5.2 of the EPC Schedule. The maximum aggregate amount of Seller Damages for which Buyer shall be liable with respect to claims made pursuant to Section 6.3 (including with respect to the breach of any Buyer Fundamental Representation, but other than with respect to Seller Damages to the extent arising from or attributable to fraud or willful misconduct by Buyer or the Project Company, for which no monetary limit shall apply) shall be equal to seventy-five percent (75%) of the amount equal to (x) the Purchase Price, minus (y) any amounts paid by Seller to Buyer pursuant to Sections 6.5.1 of the EPC Schedule, plus (z) any amounts paid by Buyer to Seller pursuant to Section 6.5.2 of the EPC Schedule. In addition, Buyer shall have no Liability in the aggregate andcase of a claim by any Seller Indemnitee, unless and until, the Seller Indemnitees have suffered or incurred Losses with respect to the Project consisting of actual damages aggregating in excess of $50,000, whereupon such event, indemnification Seller Indemnitees shall be made by Buyer entitled to claim indemnification for only the amount of all claims Losses in excess of such amount, up to a maximum of $16.0 million;
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable Indemnity Period.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Ormat Technologies, Inc.)
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer shall indemnify and hold harmless Seller Group and its their directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “"Seller Indemnitees”") from and against all liability, demands, claims, actions or causes of action, assessments, penalties, fines, settlements, judgments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ ' fees and expenses reasonably incurredexpenses) (collectively, “"Seller Damages”") asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach by Buyer of any representation or warranty contained in Article IV of this Agreement Agreement, in each case, without regard to qualifications for materiality or material adverse effect or (iiiii) a breach by Buyer of any agreement or covenant of Buyer in this Agreement or otherwiseAgreement. Seller agrees that the indemnification provided in this Section 7.3 is the exclusive remedy for a breach by Buyer of the items listed in (i) and (ii) above of this paragraph.
(b) Buyer’s 's obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a7.3(a)(i) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim (other than the right to indemnification for indemnification with respect to a breach of a representation the representations under Sections 4.2, 4.3 and 4.12, which shall not be limited as to the amount of the claim or warranty until the time at which any claim may be brought under this Agreement) unless the aggregate amount of Seller Damages under such all claims under this Article VII exceeds an amount equal to $1,000,000 in 500,000 and then only to the aggregate and, in such event, indemnification shall be made by Buyer for all claims in excess extent of such amount, up to a maximum of Seller Damages exceed $16.0 million;500,000.
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and to for which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any the applicable Indemnity PeriodPeriod in the event that an Indemnity Period applies to such Seller Damages. Any written notice delivered by a Seller Indemnitee to Buyer with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount thereof.
Appears in 1 contract
Buyer’s Agreement to Indemnify. (aA) Subject to the terms and conditions set forth hereinof this Section 7(e), from and after the Closing, Buyer shall indemnify and hold harmless Seller Seller, its Affiliates and its each of their respective directors, officers, employees, affiliates, controlling persons, agents officers and representatives and their successors and assigns (collectivelyeach, the a “Seller IndemniteesIndemnified Party”) from and against all liability, demandsLiabilities, claims, actions or causes of action, assessments, losses, judgments, settlements, fines, penalties, damages, diminution in value, costs and expenses (including, without limitation, attorneys’ reasonable expenses of investigation and defense fees and expenses reasonably incurreddisbursements of counsel and other professionals) (collectively, the “Seller Damages”) asserted against or incurred by any a Seller Indemnitee Indemnified Party as a result of or arising out of (i1) the Assumed Liabilities, (ii2) a breach of any representation or warranty of Buyer contained in Article IV of this Agreement or Agreement, (iii3) a breach of any agreement or covenant of Buyer set forth herein, (4) any claim or cause of action in this Agreement respect of any vehicle accident involving one of the trucks included in the Assets occurring on or otherwiseafter the Closing Date unless such claim or cause of action arises out of or results from a material breach of the Asset Representation; and (5) any workers’ compensation claim made with respect to any Hired Employees for injuries that occurred on or after the Closing Date or that occurred prior to the Closing Date but were first reported more than 30 days following the Closing Date.
(bB) Buyer’s obligations to indemnify Seller Indemnitees pursuant to clause Notwithstanding the foregoing, (ii1) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a any representation or warranty until pursuant to Section 7(e)(iii)(A)(2) (a “Specified Seller Claim”) unless the aggregate amount of Seller Damages under such claims all Specified Seller Claims exceeds an amount equal to $1,000,000 in the aggregate Basket Amount and, in such event, indemnification shall be made by Buyer only for all claims the amount by which such Seller Damages exceed, in excess of such amountthe aggregate, up to a maximum of $16.0 million;
the Basket Amount and (ii2) The the aggregate amount of any indemnification which shall be made by Buyer for Seller Damages under all Specified Seller Claims shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable Indemnity Periodnot exceed $3,400,000.
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth hereinin this Agreement, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Seller Indemnitees”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses reasonably incurredexpenses) (collectively, “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV III or any closing certificate delivered by or on behalf of Buyer pursuant to this Agreement or (iiiii) a any breach of any agreement or covenant of the covenants and agreements of Buyer contained in this Agreement or otherwiseAgreement.
(b) Buyer’s obligations obligation to indemnify the Seller Indemnitees pursuant to clause (ii) of under Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are is subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until under Section 7.3(a)(i) unless the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate Basket Amount and, in such event, indemnification shall be made by Buyer for all claims in excess only to the extent that the aggregate amount of such amount, up to a maximum of $16.0 millionSeller Damages exceeds the Deductible Amount;
(ii) In no event shall Buyer’s aggregate obligation to indemnify the Seller Indemnitees under Section 7.3(a)(i) exceed the Cap Amount, except in the event that such obligation to indemnify arises from the fraudulent act or omission of Buyer;
(iii) The amount of any Seller Damages shall be reduced by (A) any amount actually received by a Seller Indemnitee with respect thereto to such Seller Damages under any insurance coverage (other than self insurance) or from any other party alleged to be responsible thereforfor such Seller Damages (provided, however, that the amount of any such reduction for insurance proceeds shall be offset by the present value of any increase in insurance premiums attributable to any claim for insurance related to such Seller Damages) and (B) the amount of any Tax benefit realized or reasonably anticipated to be realized by the Seller Indemnitee attributable to such Seller Damages (provided however, that the amount of any such reduction for Tax benefit shall be offset by any increased tax liability of the Seller Indemnitee as a result of inclusion in income of any part of payments made in respect of such Seller Damages, and that for purposes of determining the amount of any Tax benefit or detriment pursuant to this Section 7.3(b)(iii), the marginal combined federal and state income tax rate of the Seller Indemnitee shall be deemed to be forty percent (40%)). The Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an any amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to under this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred amounts paid by Buyer to the Seller Indemnitee in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iiiiv) Buyer shall be obligated to indemnify the Seller Indemnitees under Section 7.3(a)(i) only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given Buyer written notice thereof of prior to the end of the Survival Period. Any written notice delivered by a Seller Indemnitee to Buyer with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount of such claim. Subject to the procedures with respect to Claims under Section 7.4, if such written notice (or an amended notice) states the amount of Seller Damages claimed and Buyer notifies the Seller Indemnitee that Buyer does not dispute the claim described in such notice or fails to notify the Seller Indemnitee within 20 business days after delivery of such notice by the Seller Indemnitee whether Buyer disputes the claim described in such notice, Seller Damages in the amount specified in such notice will be admitted by Buyer, and Buyer will pay the amount of such Seller Damages to the Seller Indemnitee. If Buyer has timely disputed its liability with respect to such claim, Seller and Buyer will proceed in good faith to negotiate a resolution of such dispute in accordance with Section 8.6. If a written notice does not state the amount of Seller Damages claimed, such omission will not preclude the Seller Indemnitee from recovering from Buyer the amount of Seller Damages with respect to the claim described in such notice if any applicable Indemnity Periodsuch amount is promptly provided once determined.
(c) Buyer will pay the amount of any Seller Damages to the Seller Indemnitee within 10 business days following the determination of Buyer’s liability for and the amount of Seller Damages (whether such determination is made pursuant to the procedures set forth in this Article VII, by agreement between Buyer and Seller, by arbitration award or by final adjudication in accordance with the terms of this Agreement).
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Imperial Sugar Co /New/)
Buyer’s Agreement to Indemnify. (a) Subject to Upon the terms and subject to the conditions set forth hereinin this Agreement, from and after the Closing, the Buyer shall indemnify and hold harmless Seller the Sellers and its their respective directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Seller Indemnitees”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, including reasonable attorneys’ fees and expenses reasonably incurredexpenses) (collectively, “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or to the extent arising out of or resulting from:
(i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV III of this Agreement when made or at and as of the Closing Date (or at and as of such different date or period specified for such representation or warranty) as though such representation and warranty were made at and as of the Closing Date (or such different date or period);
(ii) a breach of any covenant of the Buyer contained in this Agreement in each case to the extent it relates to performance prior to the Closing;
(iii) a breach of any agreement or covenant of the Buyer contained in this Agreement in each case to the extent it relates to performance on or otherwiseafter the Closing; and
(iv) any financial advisory and finders’ fees incurred by reason of any action taken by the Buyer or otherwise arising out of the transactions contemplated by this Agreement by any person claiming to have been engaged by the Buyer.
(b) The Buyer’s obligations obligation to indemnify the Seller Indemnitees pursuant to clause under Section 7.3(a)(i) and (ii) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are is subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by the Buyer with respect pursuant to any claim for indemnification with respect to a breach of a representation or warranty until Section 7.3(a)(i) and (ii) unless the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate 20,000,000 and, in such event, indemnification shall be made by the Buyer for all claims in excess only to the extent that the aggregate amount of such amount, up to a maximum of Seller Damages exceeds $16.0 million20,000,000;
(ii) In no event shall the Buyer’s aggregate obligation to indemnify the Seller Indemnitees pursuant to Section 7.3(a)(i) and (ii) exceed $250,000,000 in the aggregate;
(iii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto to such Seller Damages under any insurance coverage (other than self insurance) or from any other party alleged to be responsible thereforfor such Seller Damages. The Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee actually receives an any amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by the Buyer pursuant to under this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer the Buyer, as the case may be, for any payment made or expense incurred by the Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iiiiv) The Buyer shall be obligated to indemnify the Seller Indemnitees pursuant to Section 7.3(a)(i) only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given the Buyer written notice thereof prior to the end of any applicable Indemnity the Survival Period. Any written notice delivered by a Seller Indemnitee to the Buyer with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount of such claim.
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth hereinin this Agreement, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns Sellers (collectively, the “Seller Indemnitees”) from and against all liability, demands, claims, actions or causes of actionliabilities, assessments, losses, damages, costs and expenses whether or not arising out of third party claims (including, without limitation, interest, penalties, reasonable attorneys’ fees and expenses reasonably incurredand all reasonable amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, but in all events excluding any punitive, special, incidental, consequential, diminution of value, lost profits, or like damages or claims, “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV this Agreement or any exhibits, schedules or certificates delivered by or on behalf of Buyer pursuant to this Agreement, or (ii) any breach of any of the covenants and agreements of Buyer contained in this Agreement (including those covenants and agreements set forth in the Environmental Remediation Agreement), including without limitation any agreement of Buyer to indemnify Sellers with respect to specific matters contained elsewhere in this Agreement. Notwithstanding anything to the contrary contained in this Agreement, for purposes of determining whether Buyer is obligated to provide indemnification under Section 8.3(a)(i) of this Agreement or (iii) a breach and for purposes of 60 determining the amount of any agreement or covenant of Buyer Seller Damages to which such indemnification applies, each representation and warranty in this Agreement and each certificate delivered pursuant hereto shall be read without regard and without giving effect to the term “material” or otherwise“material adverse effect” or similar phrases contained in such representation or warranty which has the effect of making such representation and warranty less restrictive (as if such word were deleted from such representation and warranty).
(b) Buyer’s obligations obligation to indemnify the Seller Indemnitees pursuant to clause (iiunder Section 8.3(a) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are is subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until under Section 8.3(a)(i) unless (i) the aggregate amount of all Seller Damages under such claims arising out of a single breach or liability exceeds an amount equal to $1,000,000 in 5,000 and (ii) the aggregate amount of all Seller Damages exceeds the Basket and, in such event, indemnification shall be made by Buyer for all claims the aggregate amount of Seller Damages in excess of such amountthe Basket; provided, up however, that the Basket shall not apply to Seller Damages resulting from a maximum breach of $16.0 million;Section 4.1 or Section 4.5.
(ii) The amount of any Seller Damages In no event shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged Buyer’s aggregate obligation to be responsible therefor. indemnify the Seller Indemnitees under Section 8.3(a)(i) exceed the Cap Amount, except in the event that such obligation to indemnify arises from the fraud of Buyer; provided, however, that the Cap Amount shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect not apply to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this resulting from a breach of Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made 4.1 or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; andSection 4.5.
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees under Section 8.3(a)(i) only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given Buyer written notice thereof of prior to the end of the Survival Period (to the extent the Survival Period is applicable to such claim) or the survival period specified in Section 8.1 of the Agreement. Any written notice delivered by the Sellers’ Representative on behalf of a Seller Indemnitee to Buyer with respect to Seller Damages shall set forth with reasonable specificity the basis of the claim for Seller Damages if reasonably determinable at such time and, to the extent reasonably practicable, a reasonable estimate of the amount of such claim. Subject to the procedures with respect to Claims under Section 8.4 hereof, if such written notice (or an amended notice) states the amount of Seller Damages claimed and Buyer notifies the Sellers’ Representative that Buyer does not dispute the claim described in such notice or fails to notify the Sellers’ Representative within 30 business days after delivery of such notice by the Sellers’ Representative whether Buyer disputes the claim described in such notice, Seller Damages in the amount specified in such notice will be admitted by Buyer, and Buyer shall be responsible for the payment of such Seller Damages to the Sellers’ Representative on behalf of a Seller Indemnitee, unless Seller Damages in respect of such claim, once determined, are less than the amount specified in the notice, in which event Seller shall be entitled to recover such lesser amount. If Buyer has timely disputed its liability with respect to such claim by delivery of notice in accordance with this Section 8.3, Sellers’ Representative and Buyer will proceed in good faith to negotiate a resolution of such dispute in accordance with Section 8.5 hereof. Any written notice delivered by Buyer to Sellers’ Representative for purposes of disputing a claim for Sellers’ Damages shall provide in reasonable detail the basis for any applicable Indemnity Periodobjection to the matters set forth in Sellers’ Representive’s notice and the portion of the claim (if less than all) which is the subject of the dispute notice). If a written notice does not state the amount of Seller Damages claimed, such omission will not preclude the Seller Indemnitee from recovering from Buyer the amount of Seller Damages with respect to the claim described in such notice if any such amount is promptly provided once determined.
(c) Buyer will pay the amount of any Seller Damages to the Sellers’ Representative on behalf of a Seller Indemnitee within 10 days following the determination of Buyer’s liability for and the amount of Seller Damages (whether such determination is made pursuant to the procedures set forth in this Article VIII, by agreement between Buyer and Seller, by arbitration award or by final adjudication in accordance with the terms of this Agreement).
Appears in 1 contract
Samples: Stock Purchase Agreement
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliatesAffiliates, controlling personsPersons, agents and representatives and their respective successors and assigns (collectively, the “Seller Indemnitees”) from and against all liability, demands, claims, actions or causes of action, penalties, fines, assessments, deficiencies, settlements, judgments, losses, damages, costs and expenses (including, without limitation, attorneys’ including reasonable fees and expenses reasonably incurredfor attorneys, accountants, engineers and investigators) (collectively, “Seller Damages”) asserted against or incurred by any of Seller Indemnitee Indemnitees as a result of or arising out of any of the following:
(i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article ARTICLE IV other than any Buyer Fundamental Representation;
(ii) a breach of this Agreement or any Buyer Fundamental Representation;
(iii) a breach of any agreement or covenant of Buyer contained in this Agreement or otherwiseAgreement; and
(iv) the Assumed Liabilities.
(b) Buyer’s obligations obligation to indemnify Seller Indemnitees pursuant to clause (iiSection 9.3(a) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are is subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate and, in such event, No indemnification shall be made by Buyer for pursuant to Section 9.3(a)(i): (A) with respect to any individual item (or group of related items) of Seller Damage unless such Seller Damage exceeds ** and (B) unless the aggregate amount of all claims Seller Damages of the Seller Indemnitees with respect to Section 9.3(a)(i) shall exceed the Indemnification Deductible (after which point Buyer will be obligated only to indemnify Seller from and against Seller Damage in excess of the Indemnification Deductible but less than or equal to the Indemnification Ceiling). The maximum amount that Buyer shall be required to pay in the aggregate pursuant to Section 9.3(a)(i) in respect of all Seller Damages by all Seller Indemnitees is the Indemnification Ceiling less the Indemnification Deductible, after which point Buyer will not have an obligation to indemnify Seller from and against further such amount, up to a maximum of $16.0 million;Seller Damage.
(ii) Buyer’s obligation to indemnify Seller under Section 9.3(a)(ii) through Section 9.3(a)(iv) shall not be subject to any of the limitations set forth in Section 9.3(b)(i); provided that the maximum amount that Buyer shall be required to pay in the aggregate pursuant to Section 9.3(a) in respect of all Seller Damages to all Seller Indemnitees is the Unadjusted Purchase Price.
(iii) The amount of any Seller Damages shall be reduced by (A) any amount actually directly received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from for any other party alleged to be responsible therefortherefor (except such amount shall be adjusted by any increase in insurance premiums payable by Seller as a result of such insurance claim), (B) the amount of any Tax benefit actually realized by Seller Indemnitee in the form of an actual refund or credit of current Taxes payable in the year the Loss is claimed by Seller with respect the applicable indemnification against Buyer and (C) any indemnity, contribution or other similar payment actually received by Seller or any Seller Indemnitee from any third Person with respect to such Seller Damages. If Seller Indemnitees shall use commercially reasonable efforts to collect directly or indirectly receive any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.39.3, then such Seller Indemnitee Indemnitees shall promptly reimburse Buyer Buyer, as the case may be, for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net Indemnitees. Each Seller Indemnitee shall take all reasonable steps to mitigate damages in respect of any expenses incurred by claim for which such Seller Indemnitee in collecting is seeking indemnification and shall use commercially reasonable efforts to avoid any costs or expenses associated with such amount; claim and, if such costs and expenses cannot be avoided, to minimize the amount thereof.
(iiiiv) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given Buyer written notice thereof thereof, and with respect to a claim pursuant to Section 9.3(a)(i), such notice must be given prior to the end of the Survival Period. Any written notice delivered by Seller Indemnitees to Buyer with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount thereof.
(c) The limitations on indemnification set forth in Section 9.3(b) shall not apply to any applicable Indemnity Periodclaim or Seller Damages for fraud or willful misconduct on the part of Buyer.
(d) In determining the amount of any claim or Seller Damages, all materiality and “Buyer Material Adverse Effect” qualifiers contained in any representations and warranties or covenants shall be ignored.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Markwest Energy Partners L P)
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closingof this Article X, Buyer shall indemnify agrees to indemnify, defend and hold harmless harmless, Seller and its each member of the Operating Group, and the officers, directors, officersemployees and agents, employees, affiliates, controlling persons, agents and representatives and their successors and assigns of each of them (collectively, the “"Indemnified Seller Indemnitees”) Group"), from and against against, for, and in respect of any and all liabilityClaims and Losses asserted against, demandsarising out of, claimsrelating to, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and expenses reasonably incurred) (collectively, “Seller Damages”) asserted against imposed upon or incurred by any member of the Indemnified Seller Indemnitee as a result Group, directly or indirectly, by reason of or arising out of resulting from (i) the any Assumed Liabilities, Liabilities or (ii) any inaccuracy in or a breach by Buyer of any representation of its representations, warranties, covenants or warranty agreements contained in Article IV of this Agreement or (iii) a breach of any agreement or covenant of Buyer in this Agreement or otherwise(collectively "Seller Indemnified Claims" and, together with Buyer Indemnified Claims.
(b) Buyer’s obligations Notwithstanding anything to indemnify the contrary in Section 10.4(a) but subject to Section 10.4(c) below, (i) Buyer shall not be liable for Seller Indemnitees pursuant to clause Indemnified Claims arising under subsection 10.4(a)(ii) unless (A) the amount of such claim either individually, or together with any related claims, equals or exceeds $25,000 and (B) the aggregate of all Seller Indemnified Claims exceeds the Threshold Amount; provided, however, that when such claims equal or exceed -------- ------- the Threshold Amount, Buyer shall be liable for, and provide indemnification with respect to, the full amount of all such claims and (ii) of Buyer shall not be liable for Seller Indemnified Claims arising under Section 7.3(a10.4(a) hereof with respect (ii) exceeding in the aggregate U.S. $75 million.
(c) Notwithstanding anything to a breach of a representation or warranty contained the contrary in this Agreement are Section 10.4(a) and (b) above, in no event shall Seller Indemnified Claims arising under Section 10.4(a)(i) be subject to the following limitations:
(i) In the absence provision of fraud or willful misconduct, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate and, in such event, indemnification shall be made by Buyer for all claims in excess of such amount, up to a maximum of $16.0 million;
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable Indemnity Period10.4(b).
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Seller Indemnitees”) , from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses reasonably incurredexpenses) but expressly excluding indirect, consequential, incidental, special, exemplary or punitive damages (collectively, the “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV of this Agreement or Agreement, (iii) a breach of any agreement or covenant of Buyer contained herein or (iv) the use, operation or ownership of any of the Assets after Closing. Seller agrees that the indemnification provided in this Agreement Section 7.3 is the exclusive remedy for a breach by Buyer of any representation or otherwisewarranty contained in Article IV of this Agreement.
(b) Except with respect to the representations and warranties contained in Sections 4.1 and 4.7, Buyer’s obligations to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect made (a) pursuant to a breach Section 7.3(a)(ii) or (iii) unless the amount of a representation or warranty until such claim exceeds $5,000 and (b) pursuant to Section 7.3(a)(ii) unless the aggregate amount of Seller Damages under such all claims made pursuant to Section 7.3(a)(ii) exceeds an amount equal to $1,000,000 in the aggregate Basket Amount and, in such event, indemnification shall be made by Buyer for all claims only to the extent Seller Damages exceed in excess of such amount, up the aggregate an amount equal to a maximum of $16.0 millionthe Basket Amount;
(ii) In no event shall Buyer’s aggregate obligation to indemnify Seller Indemnitees pursuant to Section 7.3(a)(ii) and (iii), together with any indemnification paid pursuant to any other provisions of this Agreement, exceed an amount equal to ten million seven hundred fifty thousand dollars ($10,750,000); provided, however, that the foregoing shall not apply to any claim made under Section 7.3(a)(iii) relating to any failure by Buyer to pay any portion of the Purchase Price in accordance with the terms hereof;
(iii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any third party insurance coverage (other than self insurance) or from any other party alleged to be responsible therefor. If a Seller Indemnitee makes a claim for indemnification under this Section 7.3, Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iiiiv) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable the Indemnity Period, in the event that the Indemnity Period applies to such Seller Damages. Any written notice delivered by a Seller Indemnitee to Buyer with respect to Seller Damages shall set forth, with as much specificity as is reasonably practicable, the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount thereof.
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth hereinin this Agreement, from and after the Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns Sellers (collectively, the “Seller Indemnitees”) from and against all liability, demands, claims, actions or causes of actionliabilities, assessments, losses, damages, costs and expenses whether or not arising out of third party claims (including, without limitation, interest, penalties, reasonable attorneys’ fees and expenses reasonably incurredand all reasonable amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, but in all events excluding any punitive, special, incidental, consequential, diminution of value, lost profits, or like damages or claims, “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or arising out of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV this Agreement or any exhibits, schedules or certificates delivered by or on behalf of Buyer pursuant to this Agreement, or (ii) any breach of any of the covenants and agreements of Buyer contained in this Agreement (including those covenants and agreements set forth in the Environmental Remediation Agreement), including without limitation any agreement of Buyer to indemnify Sellers with respect to specific matters contained elsewhere in this Agreement. Notwithstanding anything to the contrary contained in this Agreement, for purposes of determining whether Buyer is obligated to provide indemnification under Section 8.3(a)(i) of this Agreement or (iii) a breach and for purposes of determining the amount of any agreement or covenant of Buyer Seller Damages to which such indemnification applies, each representation and warranty in this Agreement and each certificate delivered pursuant hereto shall be read without regard and without giving effect to the term “material” or otherwise“material adverse effect” or similar phrases contained in such representation or warranty which has the effect of making such representation and warranty less restrictive (as if such word were deleted from such representation and warranty).
(b) Buyer’s obligations obligation to indemnify the Seller Indemnitees pursuant to clause (iiunder Section 8.3(a) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are is subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until under Section 8.3(a)(i) unless (i) the aggregate amount of all Seller Damages under such claims arising out of a single breach or liability exceeds an amount equal to $1,000,000 in 5,000 and (ii) the aggregate amount of all Seller Damages exceeds the Basket and, in such event, indemnification shall be made by Buyer for all claims the aggregate amount of Seller Damages in excess of such amountthe Basket; provided, up however, that the Basket shall not apply to Seller Damages resulting from a maximum breach of $16.0 million;Section 4.1 or Section 4.5.
(ii) The amount of any Seller Damages In no event shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or from any other party alleged Buyer’s aggregate obligation to be responsible therefor. indemnify the Seller Indemnitees under Section 8.3(a)(i) exceed the Cap Amount, except in the event that such obligation to indemnify arises from the fraud of Buyer; provided, however, that the Cap Amount shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect not apply to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this resulting from a breach of Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made 4.1 or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; andSection 4.5.
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees under Section 8.3(a)(i) only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given Buyer written notice thereof of prior to the end of the Survival Period (to the extent the Survival Period is applicable to such claim) or the survival period specified in Section 8.1 of the Agreement. Any written notice delivered by the Sellers’ Representative on behalf of a Seller Indemnitee to Buyer with respect to Seller Damages shall set forth with reasonable specificity the basis of the claim for Seller Damages if reasonably determinable at such time and, to the extent reasonably practicable, a reasonable estimate of the amount of such claim. Subject to the procedures with respect to Claims under Section 8.4 hereof, if such written notice (or an amended notice) states the amount of Seller Damages claimed and Buyer notifies the Sellers’ Representative that Buyer does not dispute the claim described in such notice or fails to notify the Sellers’ Representative within 30 business days after delivery of such notice by the Sellers’ Representative whether Buyer disputes the claim described in such notice, Seller Damages in the amount specified in such notice will be admitted by Buyer, and Buyer shall be responsible for the payment of such Seller Damages to the Sellers’ Representative on behalf of a Seller Indemnitee, unless Seller Damages in respect of such claim, once determined, are less than the amount specified in the notice, in which event Seller shall be entitled to recover such lesser amount. If Buyer has timely disputed its liability with respect to such claim by delivery of notice in accordance with this Section 8.3, Sellers’ Representative and Buyer will proceed in good faith to negotiate a resolution of such dispute in accordance with Section 8.5 hereof. Any written notice delivered by Buyer to Sellers’ Representative for purposes of disputing a claim for Sellers’ Damages shall provide in reasonable detail the basis for any applicable Indemnity Periodobjection to the matters set forth in Sellers’ Representive’s notice and the portion of the claim (if less than all) which is the subject of the dispute notice). If a written notice does not state the amount of Seller Damages claimed, such omission will not preclude the Seller Indemnitee from recovering from Buyer the amount of Seller Damages with respect to the claim described in such notice if any such amount is promptly provided once determined.
(c) Buyer will pay the amount of any Seller Damages to the Sellers’ Representative on behalf of a Seller Indemnitee within 10 days following the determination of Buyer’s liability for and the amount of Seller Damages (whether such determination is made pursuant to the procedures set forth in this Article VIII, by agreement between Buyer and Seller, by arbitration award or by final adjudication in accordance with the terms of this Agreement).
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to Buyer shall, in accordance with ------------------------------ the terms hereof, fully indemnify and conditions set forth hereinhold harmless Sellers, and if applicable, their respective subsidiaries and all of their Affiliates, officers, directors employees, representatives and agents against and in respect of any and all of Sellers' Losses (i) resulting from any misrepresentation or breach of warranty or the nonfulfillment of any agreement, covenant or obligation by Buyer made in this Agreement and (ii) arising out of the ownership, operation or conduct of the business of the Company or its subsidiaries from and after the Closing Date, except to the extent Buyer is entitled to be indemnified by Sellers hereunder with respect to any such Loss; provided, however, that the amount of any said -------- indemnification by Buyer hereunder shall be limited as follows: Buyer shall not be subject to liability under this Section 9(e) unless and until any and all of Sellers' Losses exceed $100,000 in the aggregate (in which case Buyer shall only be liable with respect to the excess over $100,000). It is expressly understood that Sellers' recourse against Buyer is limited and Sellers may only seek recourse against the Buyer for an amount equal to three million dollars ($3,000,000). Sellers shall not be entitled to recover indemnification amounts under Section 9(e) hereof (A) unless any Seller promptly asserts such claims by written notice to Buyer (provided, that failure of such Seller to give such notice shall not relieve the Buyer from any liability which it may have on account of this indemnification, except to the extent that the Buyer is materially prejudiced thereby) specifying briefly the details of the alleged misrepresentation or breach, (B) with respect to a misrepresentation or breach of warranty or covenant or agreement by or of the Buyer which is contained herein if, at or before the time of Closing, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Seller Indemnitees”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and expenses reasonably incurred) (collectively, “Seller Damages”) asserted against or incurred by any Seller Indemnitee had knowledge of the misrepresentation or breach of warranty or covenant or agreement , (C) to the extent a Loss for which indemnification is requested results from any oral or written agreement entered into by the Company prior to the Closing Date, which (1) relates to the period after the Closing Date, (2) was not disclosed to Buyer and (3) was known to Sellers on the date hereof to have constituted a breach of the representations and warranties hereunder without regard to materiality. Sellers further agree that in no event shall Sellers recover in the aggregate after taking into consideration insurance proceeds, if any, more than one hundred percent (100%) for any Loss incurred and to take all reasonable steps, as may be required by law, to mitigate the extent of any Loss. The amount of any recovery by Sellers pursuant to Section 9(e) shall be net of an federal, state, local and/or other income tax benefits inuring to the Sellers as a result of or arising out the state of (i) the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article IV of this Agreement or (iii) a breach of any agreement or covenant of Buyer in this Agreement or otherwise.
(b) Buyer’s obligations facts which entitled Sellers to indemnify Seller Indemnitees pursuant to clause (ii) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no indemnification pursuant to this Section 7.3 shall be made by Buyer with respect to any claim for indemnification with respect to a breach of a representation or warranty until the aggregate amount of Seller Damages under such claims exceeds an amount equal to $1,000,000 in the aggregate and, in such event, indemnification shall be made by Buyer for all claims in excess of such amount, up to a maximum of $16.0 million;
(ii) The amount of any Seller Damages shall be reduced by any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self insurance) or recover from any other party alleged to be responsible therefor. Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee receives an amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by Buyer pursuant to this Section 7.3, then such Seller Indemnitee shall promptly reimburse Buyer for any payment made or expense incurred by Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iii) Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and to which the Seller Indemnitees have given Buyer written notice thereof prior to the end of any applicable Indemnity Period9(e).
Appears in 1 contract
Buyer’s Agreement to Indemnify. (a) Subject to Upon the terms and subject to the conditions set forth hereinin this Agreement, from and after the Closing, the Buyer shall indemnify indemnify, defend and hold harmless the Seller and its directors, officers, employees, affiliatespartners, controlling personsAffiliates, agents and representatives and their successors and assigns (collectively, the “Seller Indemnitees”) from and against all liabilityliabilities, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, including reasonable attorneys’ fees and expenses reasonably incurredexpenses) (collectively, “Seller Damages”) asserted against or incurred by any Seller Indemnitee as a result of or to the extent arising out of or resulting from the following: (i) the Assumed Liabilities, (ii) a any breach of any representation or warranty contained of the Buyer in Article IV this Agreement; (ii) any breach or nonfulfillment of any covenant, agreement or other obligation of the Buyer in this Agreement or Agreement; (iii) a breach the ownership or operation of the Company, the Company’s Subsidiaries and the Business after the Closing and not otherwise the subject of indemnification under Section 9.2 and (iv) the drawing of any agreement or covenant amounts under the letter of Buyer credit described in Section 6.11 (and the Seller agrees that NGS shall be the direct beneficiary and recipient of any indemnification pursuant to this Agreement or otherwiseclause (iv)).
(b) The Buyer’s obligations obligation to indemnify the Seller Indemnitees pursuant to clause (iiunder Section 9.3(a) of Section 7.3(a) hereof with respect to a breach of a representation or warranty contained in this Agreement are is subject to the following limitations:
(i) In the absence of fraud or willful misconduct, no No indemnification pursuant to this Section 7.3 shall be made by the Buyer with respect pursuant to any claim for indemnification with respect to a breach clause (i) of a representation or warranty until Section 9.3(a) unless the aggregate amount of Seller Damages under subject to such claims clause exceeds an amount equal to $1,000,000 in the aggregate Threshold Amount and, in such event, indemnification shall be made by the Buyer only to the extent that the aggregate amount of Buyer Damages exceeds the Threshold Amount; provided that any Seller Damages that individually total less than $25,000 (“De Minimis Seller Losses”) shall be excluded in their entirety and the Buyer in no event shall have any liability hereunder to any Seller Indemnitees for all claims in excess of any such amount, up to a maximum of $16.0 millionDe Minimis Seller Losses;
(ii) Except in the case of a breach of a representation or warranty contained in Section 5.1, Section 5.2, Section 5.3(a) or Section 5.8, in no event shall the Buyer’s aggregate obligation to indemnify the Seller Indemnitees pursuant to clause (i) of Section 9.3(a) exceed $40,000,000 in the aggregate (simply for purposes of clarification, this amount shall be reduced by a dollar for each dollar paid by the Buyer under a claim for indemnification by any Seller Indemnitees pursuant to Section 9.3(a)(i)); and in no event shall the Buyer’s obligation to indemnify the Seller Indemnitees pursuant to Section 9.3(a) exceed $725,000,000 in the aggregate (simply for purposes of clarification, this amount shall be reduced by a dollar for each dollar paid by the Buyer under a claim for indemnification by any Seller Indemnitees pursuant to Section 9.3(a)).
(iii) The amount of any Seller Damages shall be reduced by any amount actually directly or indirectly received by a Seller Indemnitee with respect thereto to such Seller Damages under any insurance coverage (other than self insurance) or from any other party alleged to be responsible thereforfor such Seller Damages. The Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Seller Indemnitee directly or indirectly receives an any amount under insurance coverage or from such other party with respect to Seller Damages at any time subsequent to any indemnification provided by the Buyer pursuant to under this Section 7.39.3, then such Seller Indemnitee shall promptly reimburse the Buyer for any payment made or expense incurred by the Buyer in connection with providing such indemnification up to such amount received by the Seller Indemnitee, but net of any expenses incurred by such Seller Indemnitee in collecting such amount; and
(iiiiv) The Buyer shall be obligated to indemnify the Seller Indemnitees only for those claims with respect to a breach of a representation or warranty giving rise to Seller Damages and as to which the Seller Indemnitees have given the Buyer written notice thereof prior to the end of any the applicable Indemnity Survival Period. Any written notice delivered by a Seller Indemnitee to the Buyer with respect to Seller Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Seller Damages and, to the extent reasonably practicable, a reasonable estimate of the amount of such claim.
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