Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Seller shall be under no liability to indemnify Purchaser under Section 10.2.1 and no claim under Section 10.2.1 of this Agreement shall: (i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests; (ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.2.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier; (iii) be made to the extent that such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with: (A) the use, ownership or operation of any of the Hospitals, or (B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH Businesses, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices prior to the Effective Time); other than as specifically included in the Excluded Liabilities; (iv) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital; (v) be made to the extent such claim relates to an obligation or liability for which Purchaser has agreed to indemnify Seller pursuant to Section 10.3; (vi) be made to the extent that such claim would not have arisen but for a voluntary act, omission or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date; (vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.2.2(a)(vii) shall not apply to the extent of any payments which Purchaser is required to make to a third party which are in the nature of Consequential Damages; and (viii) accrue to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1 (a) exceeds Five Thousand Dollars ($5,000) (a “Relevant Claim”) and (B) the total actual liability of Seller in respect of all Relevant Claims in the aggregate exceeds One Million Dollars ($1,000,000) (the “Aggregate Amount”), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims in the full amount of Damages provided, however, that the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a). (b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price. (c) If Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Seller pays to Purchaser an amount in respect of a claim, and Purchaser subsequently recovers from a third party a sum which is referable to that claim, Purchaser shall forthwith repay such amount to Seller less all reasonable costs, charges and expenses incurred by Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Samples: Asset Sale Agreement (Health Management Associates Inc)
Indemnification Limitations. (ai) Notwithstanding anything contained herein to the contrary (other than as to claims that constitute Tax Claims as provided in Section 12(c)(iii) and other than as to claims for Fraud as provided in Section 12(c)(iv), Indemnified Persons shall not be entitled to indemnification with respect to claims that are made pursuant to Section 12(b) for any provision claim until and unless the Indemnifiable Damages resulting from such individual claim or series of related claims exceeds $75,000 (as further described in clause (vi) below, the “Claim Threshold”), whereupon the Indemnified Persons shall be entitled to receive all amounts for losses for any claim (or a group of claims relating to the same facts or circumstances, event or transaction) that are in excess of the Claims Threshold subject to the other limitations of this Section 12 (such claims being referred to as “Qualifying Claims”). Except for Tax Claims as provided in Section 12(c)(iii), Indemnified Persons shall be entitled to payment for Qualifying Claims only as follows: (x) the Qualifying Claim shall be paid solely out of the Indemnity Escrow Amount; and (y) as to the balance of the Qualifying Claim that exceeds the remaining balance of the Indemnity Escrow Amount, such amount shall be paid solely through the R&W Insurance Policy. Notwithstanding the foregoing, the Claim Threshold shall not apply to claims to the extent such claims are (x) caused by Fraud, (y) in connection with or caused by any inaccuracies in the Funds Flow Memorandum Indemnity Matters, or (z) relating to a breach of a representation or a warranty set forth in Section 3(n) (Taxes) or relating to a breach of a covenant or an agreement set forth in Section 8 (Covenants Regarding Tax Matters) (each such claim described in clause (z), a “Tax Claim”). Notwithstanding anything to the contrary set forth herein, except for claims that are caused by Fraud (subject to the terms of Section 12(c)(iv)) or are in connection with any inaccuracies in the Funds Flow Memorandum Indemnity Matters, (1) for claims other than Tax Claims, the aggregate Liability of the Sellers under this Section 12 shall not exceed the remaining balance of the Indemnity Escrow Amount and (2) for claims that constitute Tax Claims (subject to the terms of Section 12(c)(iii)), the aggregate Liability of the Sellers for Tax Claims shall not exceed the remaining balance of the Tax Escrow Amount.
(ii) Each Seller agrees to be severally, but not jointly, contractually liable for any amounts owed to the Indemnified Persons with respect to any inaccuracies in the Funds Flow Memorandum Indemnity Matters.
(iii) The Sellers’ obligations with respect to Tax Claims shall be subject to the following:
a. Each Seller agrees to be jointly and severally, contractually liable for any amounts owed to the Indemnified Persons; provided that in no event shall the aggregate Liability of the Sellers with respect to all Tax Claims exceed the sum of the remaining balance of the Tax Escrow Amount..
b. The Indemnified Persons shall have the right to choose in their sole discretion, with respect to each Tax Claim, to recover such claim, in whole or in part, from (1) the remaining balance of the Tax Escrow Amount or (2) the R&W Insurance Policy (if covered by the R&W Insurance Policy).
(iv) The Sellers’ obligations with respect to Fraud shall be subject to the following:
a. Each Seller agrees to be severally, but not jointly, contractually liable for such Seller’s pro rata portion of any amounts awarded to an Indemnified Person by an arbitral panel or court of competent jurisdiction in a final, non-appealable judgment for Fraud committed by such Seller or by the Company.
b. The Liability of each Seller for Fraud in connection with the representations and warranties set forth on Section 4 shall be several and individual obligations of such Seller and no Seller shall be liable to the Indemnified Persons or otherwise responsible for Fraud in connection with the representations and warranties set forth on Section 4 by any other Seller.
c. The Indemnified Persons shall have the right to choose in their sole discretion, with respect to a claim for Indemnifiable Damages for Fraud, to recover such claim, in whole or in part, from (1) the remaining balance of the Indemnity Escrow Amount or (2) the R&W Insurance Policy (if covered by the R&W Insurance Policy).
(v) Indemnifiable Damages in respect of a matter shall be reduced by the amount of (x) any insurance proceeds (other than pursuant to the R&W Insurance Policy) actually received by the Indemnified Person with respect to such matter, net of any costs of collection and any increase in premiums to be paid by the Indemnified Person related to the insurance carrier's payment of such claim; and (y) any amounts realized from indemnification or similar rights against third parties.
(vi) Notwithstanding anything to the contrary contained in this Agreementherein, Seller Indemnifiable Damages shall be under no liability to indemnify Purchaser under Section 10.2.1 not include consequential, indirect, lost profits, punitive and no claim under Section 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s ability to defend its rights, mitigate exemplary damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.2.2(a)(ii12(c)(vi) shall not apply limit an Indemnified Party’s right to the extent that coverage recovery under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that this Section 12 for any such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the Hospitals, or
(B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH Businesses, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices prior to the Effective Time); other than as specifically included in the Excluded Liabilities;
(iv) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital;
(v) be made damages to the extent such claim relates Indemnified Party is required to an obligation or liability pay such damages to a third party in connection with a matter for which Purchaser has agreed such Indemnified Party is otherwise entitled to indemnify Seller pursuant to indemnification under this Section 10.3;
(vi) be made to the extent that such claim would not have arisen but for a voluntary act, omission or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date;12.
(vii) be made to For purposes of determining whether one or more items or a specific claim exceeds the extent such claim seeks Damages which are consequential in nature Claim Threshold: (as opposed to direct)x) all claims or demands arising out of the same or related set of circumstances, including, without limitation, loss facts or occurrence (whether or not occurring at the same moment of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.2.2(a)(viitime) shall not apply be aggregated; and (y) all claims or demands relating to an occurrence that has the extent of any payments which Purchaser is required same underlying issue or root cause shall be deemed to make to a third party which are in the nature of Consequential Damages; andbe aggregated.
(viii) accrue The Liability of each Seller for a breach of such Seller’s covenants shall be several and individual obligations of such Seller and no Seller shall be liable to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect an Indemnified Person for a breach of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a “Relevant Claim”) and (B) the total actual liability of Seller in respect of all Relevant Claims in the aggregate exceeds One Million Dollars ($1,000,000) (the “Aggregate Amount”), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims in the full amount of Damages provided, however, that the Aggregate Amount shall be inapplicable to covenant by any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a)other Seller.
(bix) Notwithstanding Except in the case of , Fraud or in respect to any provision inaccuracies in the Funds Flow Memorandum Indemnity Matters, in no event shall any Seller’s Liability to an Indemnified Person exceed such Seller’s pro rata share of the contrary contained Cap. For the avoidance of doubt, Seller’s Liability to an Indemnified Person in this Agreement, the maximum aggregate liability case of Seller Fraud or in respect to Purchaser under this Agreement any inaccuracies in the Funds Flow Memorandum Indemnity Matters shall not exceed the Cash Purchase Price.
(c) If Purchaser is entitled be limited to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Seller pays to Purchaser an amount in respect of a claim, and Purchaser subsequently recovers from a third party a sum which is referable to that claim, Purchaser shall forthwith repay such amount to Seller less all reasonable costs, charges and expenses incurred by Purchaser in obtaining payment in respect of that claim and in recovering that sum recovery from the third partyIndemnity Escrow Amount.
Appears in 1 contract
Indemnification Limitations. Notwithstanding anything contained in this Agreement to the contrary, the liability of the Corporation and the Shareholder shall be subject to the following limitations: (a) Notwithstanding the Corporation and the Shareholder, in the aggregate, shall not be liable for any provision Damages and/or in respect of the Purchase Price Adjustment in an aggregate amount in excess of the Purchase Price (or such lesser amount if not all the Purchase Price is released to the contrary contained Corporation under the Escrow Agreement); (b) on the day immediately following the Anniversary Date and except with respect to Damages relating to Environmental Matters, Taxes and the representations and warranties set forth in this AgreementSections 3.01, Seller 3.03, 3.11 and 3.19 hereof, the aggregate liability of the Corporation and the Shareholder in respect of Damages shall be under no liability reduced to indemnify Purchaser under Section 10.2.1 and no claim under Section 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss$400,000; provided, however, that this Section 10.2.2(a)(ii) such reduced liability maximum shall not apply if prior to such date, the extent that coverage under Corporation and/or the applicable policy Shareholder shall have been notified of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that a claim for indemnity hereunder which potentially exceeds such reduced liability maximum, and such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the Hospitals, or
(B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH Businesses, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices prior to the Effective Time); other than as specifically included in the Excluded Liabilities;
(iv) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital;
(v) be made to the extent such claim relates to an obligation or liability for which Purchaser has agreed to indemnify Seller pursuant to Section 10.3;
(vi) be made to the extent that such claim would shall not have arisen but for a voluntary act, omission been finally resolved or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date;
(vii) be made to the extent disposed of as of such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”)date; provided, however, the limitation contained in this Section 10.2.2(a)(vii) shall not apply to the extent of any payments which Purchaser is required to make to a third party which are in the nature of Consequential Damages; and
(viii) accrue to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a “Relevant Claim”) and (B) the total actual liability of Seller in respect of all Relevant Claims in the aggregate exceeds One Million Dollars ($1,000,000) (the “Aggregate Amount”), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims in the full amount of Damages provided, however, that the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a).
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price.
(c) If the Corporation and the Shareholder, in the aggregate, shall not be liable for any Damages (exclusive of the Purchase Price Adjustment) to Purchaser is entitled to recover any sum (whether hereunder until the aggregate amount of all such Damages exceeds $25,000, it being understood and agreed by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party the Corporation and any sum recovered will reduce the Shareholder that when the amount of such Damages exceeds $25,000, in the claim. If Seller pays to Purchaser an amount aggregate, indemnification may be sought against the Corporation and the Shareholder in respect of a claim, and Purchaser subsequently recovers from a third party a sum which is referable to that claim, Purchaser shall forthwith repay full for all such amount to Seller less all reasonable costs, charges and expenses incurred by Purchaser in obtaining payment in respect of that claim and in recovering that sum Damages from the third partyfirst dollar thereof; and (d) the Corporation and Shareholder shall not be liable for Damages with respect to Environmental Matters which relate to real estate not owned by the Corporation or Shareholder unless it is claimed that such Environmental Matter was caused, in whole or in part, by the actions or inactions of the Corporation or Shareholder.
Appears in 1 contract
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Seller shall be under no liability to indemnify the Purchaser Group under Section 10.2.1 and no claim under Section 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s 's ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of lossloss (other than a policy of insurance with an affiliate of Purchaser); provided, however, that this Section 10.2.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the Hospitals, or
(B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH BusinessesAssets, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s 's policies, procedures and/or practices prior to the Effective Time); other than as specifically included in the Excluded Liabilities;
(iv) be made to the extent that such claim (or the basis therefor) is set forth in the Disclosure Schedule, any Exhibit or Schedule to this Agreement (without giving effect to any Disapproved Schedules), unless Seller's indemnification of the Purchaser Group is based on a provision hereof other than Section 10.2.1(a);
(v) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital;
(vvi) be made to the extent such claim relates to an obligation or liability for which Purchaser has agreed to indemnify Seller pursuant to Section 10.3;
(vivii) be made to the extent such claim relates to Seller's failure to comply with or the Assets' failure to be in compliance with the Americans with Disabilities Act; provided, however, this Section 10.2.2(a)(vii) shall not apply to the extent that such claim would not have arisen but for arises as a voluntary actresult of a claim brought by an individual (which shall specifically exclude, omission without limitation, governmental third parties) who alleges that he or transaction carried out by Purchaser, TRH or their affiliates after she has suffered damages prior to the Effective DateTime, including, without limitation, damages arising from personal injury;
(viiviii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “"Consequential Damages”"); provided, however, the limitation contained in this Section 10.2.2(a)(vii10.2.2(a)(viii) shall not apply to the extent of any payments which Purchaser or any member of the Purchaser Group is required to make to a third party (other than any third party which is a member of the Purchaser Group) which are in the nature of Consequential Damages; and
(viiiix) accrue to Purchaser or any member of the Purchaser Group under Section 10.2.1(a) unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a “"Relevant Claim”") and (B) the total actual liability of Seller under Section 10.2.1
(a) in respect of all Relevant Claims in the aggregate exceeds One Million Dollars ($1,000,000) (the “"Aggregate Amount”"), in which event Purchaser or any member of the Purchaser Group shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims only in the full an amount of Damages provided, however, that which exceed the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a)Amount.
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to the Purchaser Group under this Agreement shall not exceed the Cash Purchase PricePrice (as adjusted pursuant to Section 1.4).
(c) If Purchaser or any member of the Purchaser Group is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party (other than an insurance carrier or an affiliate of Purchaser) in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall shall, at its option, either use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim, or assign to Seller the right of Purchaser or the applicable member of the Purchaser Group to pursue such third party. If Seller pays to any member of the Purchaser Group an amount in respect of a claim, and such member of the Purchaser Group subsequently recovers from a third party (other than an insurance carrier or an affiliate of Purchaser) a sum which is referable to that claim, Purchaser shall, and shall cause the applicable member of the Purchaser Group to, forthwith repay such amount to Seller so much of the amount paid by Purchaser or the applicable member of the Purchaser Group as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by Purchaser or the applicable member of the Purchaser Group in obtaining payment in respect of that claim and in recovering that sum from the third party.
(d) Upon notice to Seller specifying in reasonable detail the basis therefore, Purchaser shall, during the term of the Indemnity Escrow Agreement, give notice of any claim for indemnity hereunder to Seller and the Escrow Agent pursuant to the Indemnity Escrow Agreement. In accordance with, and subject to, the terms of the Indemnity Escrow Agreement, Purchaser shall, during the term of the Indemnity Escrow Agreement, unless and until all amounts in the escrow have been exhausted, satisfy its indemnity claims under Section 10.2 from any amounts held in escrow pursuant to the Indemnity Escrow Agreement. The Escrow Amount shall not be deemed to be a limit on Seller's obligations under this Section 10.2.
Appears in 1 contract
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Seller Purchaser shall be under no liability to indemnify Purchaser Seller under Section 10.2.1 10.3(a) and no claim under Section 10.2.1 of this Agreement shall10.3(a) shall be made:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser Seller to Seller Purchaser, in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests10.4 within the Survival Period;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.2.2(a)(ii10.3(b)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the HospitalsHospital, or
(B) the use, operation or ownership or operation of any of the Assets or the assets comprising any of the TRH BusinessesAssets, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices prior to the Effective Time); , other than as specifically included in the Excluded LiabilitiesAssumed Obligations;
(iv) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital;
(v) be made to the extent such claim relates to an obligation or liability for which Purchaser Seller has agreed to indemnify Seller Purchaser pursuant to Section 10.3;10.2; or
(viv) be made to the extent that such claim would not have arisen but for a voluntary act, omission or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date;
(vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.2.2(a)(vii) shall not apply to the extent of any payments which Purchaser is required to make to a third party which are in the nature of Consequential Damages; and
(viii) accrue to Purchaser Seller unless and only to the extent that (A) the actual liability of Seller Purchaser in respect of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a “Relevant Claim”) and (B) the total actual liability of Seller in respect of all Relevant Claims or multiple claims in the aggregate exceeds One Million Dollars ($1,000,000) (the “Aggregate Amount”), Relevant Claim amount in which event Purchaser Seller shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims in the full total amount of Damages provided, however, that the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(aRelevant Claim(s).
(b) ; or Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Purchaser to Seller to Purchaser under this Agreement shall not exceed fifty percent (50%) of the Cash Purchase Price.
(c) If Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Seller pays to Purchaser an amount in respect of a claim, and Purchaser subsequently recovers from a third party a sum which is referable to that claim, Purchaser shall forthwith repay such amount to Seller less all reasonable costs, charges and expenses incurred by Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Health Corp /De/)
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Seller shall be under no liability to indemnify Purchaser under Section 10.2.1 10.2(a) and no claim under Section 10.2.1 of this Agreement shall10.2(a) shall be made:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interestsinterests within the Survival Period;
(ii) be made to the extent that any loss Damages may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.2.2(a)(ii10.2(b)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the Hospitals, or
(B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH Businesses, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices prior to the Effective Time); other than as specifically included in the Excluded Liabilities;
(iv) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital;
(v) be made to the extent such claim relates to an obligation or liability for which Purchaser has agreed to indemnify Seller pursuant to Section 10.3;
(viiv) be made for any Assumed Liabilities;
(v) to the extent that such related to a claim would not have arisen but under Section 10.2(a)(i) or a claim under Section 10.2(a)(ii) for a voluntary act, omission or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date;
(vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.2.2(a)(vii) shall not apply to the extent Seller’s breach of any payments which Purchaser is covenant required to make be performed or satisfied at or prior to a third party which are in the nature of Consequential Damages; and
(viii) Closing, accrue to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) or multiple claims in the aggregate exceeds Five One Hundred Fifty Thousand Dollars ($5,000150,000) (a “Relevant Claim”) and (B) the total actual liability of Seller in respect of all Relevant Claims in the aggregate exceeds One Million Dollars ($1,000,000) (the “Aggregate Amount”), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims in the full amount of Damages provided, however, that the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a).
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price.
(c) If Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the total amount of the claim. If Seller pays Relevant Claim(s); or
(vi) to the extent that Purchaser an amount in respect had actual knowledge at or prior to the Effective Time of (A) the respective breach of a claim, and Purchaser subsequently recovers from representation or warranty by Seller or (B) the breach of a third party a sum which is referable covenant required to that claim, Purchaser shall forthwith repay such amount be performed or satisfied at or prior to Seller less all reasonable costs, charges and expenses incurred by Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third partyEffective Time.
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Health Corp /De/)
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Seller shall be under no liability to indemnify Purchaser under Section 10.2.1 10.2(a) and no claim under Section 10.2.1 10.2(a) of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on applicable to the date incident out of losswhich the loss arises; provided, however, that this Section 10.2.2(a)(ii10.2(b)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the HospitalsHospital, or
(B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH BusinessesAssets, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices prior to the Effective Time); , other than as specifically included in the Excluded Liabilities;
(iv) be made if and to the extent that proper provision Purchaser had actual knowledge of (A) the respective breach of a representation and warranty by Seller or reserve was made for the matter giving rise (B) other indemnifiable event, prior to the claim in Net Working CapitalEffective Time;
(v) be made to the extent such claim relates to an obligation or liability for which Purchaser has agreed to indemnify Seller pursuant to Section 10.3;
(vi) be made to the extent that such claim would not have arisen but for a voluntary act, omission or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date;
(vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.2.2(a)(vii) shall not apply to the extent of any payments which Purchaser is required to make to a third party which are in the nature of Consequential Damages; and
(viii) accrue to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a “Relevant Claim”) and (B) the total actual liability of Seller in respect of all Relevant Claims or multiple claims in the aggregate exceeds One Million Hundred Thousand Dollars ($1,000,000100,000) (the individually a “Aggregate AmountRelevant Claim or collectively “Relevant Claims”), ”) in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for the total amount of each Relevant Claim, or if applicable, all Relevant Claims in the full amount of Damages provided, however, that the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a).Claims;
(bvii) Notwithstanding notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price.
(c) If Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Seller pays to Purchaser an amount in respect of a claim, and Purchaser subsequently recovers from a third party a sum which is referable to that claim, Purchaser shall forthwith repay such amount to Seller less all reasonable costs, charges and expenses incurred by Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Health Corp /De/)
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Seller shall be under no liability to indemnify Purchaser under Section 10.2.1 and no claim under Section 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s 's ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.2.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the Hospitals, Hospitals or
(B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH BusinessesAssets, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s 's policies, procedures and/or practices prior to the Effective Time); other than as specifically included in the Excluded Liabilities;
(iv) be made if and under Section 10.2.1(a) to the extent that proper provision such claim (or reserve was made for the matter giving rise basis therefor) is set forth in the Disclosure Schedule, any Exhibit or Schedule to the claim in Net Working Capitalthis Agreement;
(v) Intentionally Omitted;
(vi) be made to the extent such claim relates to an obligation Seller's failure to comply with or liability for which Purchaser has agreed the Assets' failure to indemnify Seller pursuant to be in compliance with (A) the Americans with Disabilities Act or (B) the Alfred E. Alquist Hospital Facixxxxxx Xxxxxxx Xxfety Act of 1983, as amended by the California Hospitals Facilities Seismic Safety Act (codified at California Health and Safety Code ss.129675 through ss.130070); provided, however, this Section 10.3;
(vi10.2.2(a)(vi) be made shall not apply to the extent that such claim would arises as a result of a claim brought by a non-governmental third party who has suffered personal injury prior to the Effective Time provided that this 10.2.2(a)(vi) shall not have arisen but be construed to limit Purchaser's rights to indemnification under Section 10.2.1
(a) for a voluntary act, omission breach by Seller of any representation or transaction carried out by Purchaser, TRH or their affiliates after the Effective Datewarranty under this Agreement;
(vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “"Consequential Damages”"); provided, however, the limitation contained in this Section 10.2.2(a)(vii) shall not apply to the extent (A) of any payments which Purchaser is required to make to a third party (other than any third party which is an affiliate of, investor of or lender to Purchaser) which are in the nature of Consequential DamagesDamages and (B) such third party's claim is unrelated to the failure to obtain any or all of the Contract and Lease Consents; and
(viii) accrue to Purchaser under Section 10.2.1(a) unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a “"Relevant Claim”") and (B) the total actual liability of Seller in respect of all Relevant Claims under Section 10.2.1
(a) in the aggregate exceeds One Two Million Five Hundred Thousand Dollars ($1,000,0002,500,000) (the “"Aggregate Amount”"), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims only in the full an amount of Damages which exceed the Aggregate Amount; provided, however, that the Aggregate Amount exception set forth in this Section 10.2.2(viii) shall not be inapplicable construed to any claim by limit the indemnification available to Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(aunder Sections 10.2.1(b), (c), (d), (e), (f), (g), (h) and (i).
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price.
(c) If Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Seller pays to Purchaser an amount in respect of a claim, and Purchaser subsequently recovers from a third party a sum which is referable to that based on the same claim, Purchaser shall forthwith repay such amount to Seller so much of the amount paid by it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses (including reasonable attorneys fees) incurred by Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Samples: Asset Sale Agreement (Integrated Healthcare Holdings)
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Seller the Purchasers shall be under no liability to indemnify Purchaser the Sellers under Section 10.2.1 12.3.1 and no claim under Section 10.2.1 12.3.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser the Sellers to Seller the Purchasers in the manner provided in Section 10.412.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s the Purchasers’ ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.2.2(a)(ii12.3.2(a)(ii) shall not apply to deductibles or copayments, any self-insurance program or insurance provided by captive affiliates, or to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability of the Sellers arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the HospitalsFacilities, or
(B) the use, operation or ownership or operation of any of the Assets or the assets comprising any of the TRH BusinessesAcquired Assets, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices prior to the Effective Time); Date, other than as specifically included in the Excluded LiabilitiesAssumed Obligations;
(iv) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital;
(v) be made to the extent such claim relates to an obligation or liability for which Purchaser has the Sellers have agreed to indemnify Seller the Purchasers pursuant to Section 10.312.2;
(vi) be made to the extent that such claim would not have arisen but for a voluntary act, omission or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date;
(viiv) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.2.2(a)(vii12.3.2(a)(v) shall not apply to the extent of any payments which Purchaser the Sellers or any affiliate of the Sellers is required to make to a third party which are in the nature of Consequential Damages; and
(viiivi) accrue under Section 12.3.1(a) to Purchaser the benefit of the Sellers unless and only to the extent that (A) the actual liability of Seller the Purchasers to the Sellers in respect of any single claim under Section 10.2.1
(a12.3.1(a) exceeds Five Thousand Dollars ($5,000) (a “the Relevant Claim”) Claim Amount and (B) the total actual liability of Seller the Purchasers in respect of all Relevant Claims in exceeds the aggregate exceeds One Million Dollars ($1,000,000) (the “Aggregate Amount”), in which event Purchaser Sellers and other indemnified Persons shall be entitled to seek indemnification under Section 10.2.1(a12.3.1(a) for all Relevant Claims in the full amount of claims for Damages provided, however, that which exceed the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a)Amount.
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller the Purchasers to Purchaser Sellers and other indemnified Persons for claims brought under this Agreement Section 12.3.1(a) shall not exceed an amount equal to fifty percent (50%) of the Cash Purchase Price.
(c) If Purchaser is the Sellers are entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller the Purchasers hereunder, Purchaser the Sellers shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Seller the Purchasers pays to Purchaser the Sellers an amount in respect of a claim, and Purchaser the Sellers subsequently recovers from a third party a sum which is referable to that claim, Purchaser the Sellers shall forthwith repay such to the Purchasers so much of the amount to Seller paid by it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by Purchaser the Sellers in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Vanguard Health Systems Inc)
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Seller the Sellers shall be under no liability to indemnify Purchaser the Purchasers under Section 10.2.1 12.2.1 and no claim under Section 10.2.1 12.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser the Purchasers to Seller the Sellers in the manner provided in Section 10.412.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s the Sellers’ ability to defend its their rights, mitigate damages, seek indemnification from a third party or otherwise protect its their interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.2.2(a)(ii12.2.2(a)(ii) shall not apply to deductibles or copayments, any self-insurance program or insurance provided by captive affiliates, or to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the HospitalsFacilities, or
(B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH BusinessesAcquired Assets, on and after the Effective Time Date (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s the Sellers’ policies, procedures and/or practices prior to the Effective TimeDate); other than as specifically included in the Excluded Liabilities;
(iv) be made under Section 12.2.1(a) to the extent that such claim (or the basis therefor) is set forth in the Disclosure Schedules or any Schedule to this Agreement;
(v) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in, or noted in, or taken account of in Net Working Capital;
(vvi) be made to the extent such claim relates to an obligation or liability for which Purchaser has the Purchasers have agreed to indemnify Seller the Sellers pursuant to Section 10.3;
(vi) be made to the extent that such claim would not have arisen but for a voluntary act, omission or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date12.3;
(vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.2.2(a)(vii12.2.2(a)(vii) shall not apply to the extent (A) of any payments which Purchaser the Purchasers or other indemnified Person is required to make to a third party (other than any third party which is an affiliate of either of the Purchasers) which are in the nature of Consequential Damages;
(viii) be made under Section 12.2.1(a) to the extent that such claim relates to the Purchasers’ ability to collect the Accounts Receivable; provided, however, the limitation contained in this Section 12.2.2(a)(viii) shall not apply to any breach by any of the Sellers of its representation and warranty contained in Section 4.15; and
(viiiix) accrue under Section 12.2.1(a) to Purchaser the benefit of the Purchasers unless and only to the extent that (A) the actual liability of Seller the Sellers to the Purchasers in respect of any single claim under Section 10.2.1
(a12.2.1(a) exceeds Five Ten Thousand Dollars ($5,00010,000) (a the “Relevant ClaimClaim Amount”) and (B) the total actual liability of Seller the Sellers to the Purchasers in respect of all Relevant Claims in the aggregate exceeds One Million Fifty Thousand Dollars ($1,000,00050,000) (the “Aggregate Amount”), in which event Purchaser the Purchasers or other indemnified Person shall be entitled to seek indemnification under Section 10.2.1(a12.2.1(a) for all Relevant Claims in the full amount of claims for Damages provided, however, that which exceed the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a)Amount.
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller the Sellers to Purchaser the Purchasers and other indemnified Persons for claims brought under this Agreement Section 12.2.1(a) shall not exceed an amount equal to fifty percent (50%) of the Cash Purchase Price.
(c) If Purchaser is the Purchasers are entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party (other than an insurance provider or another Person entitled to indemnification by the Sellers hereunder) in respect of any matter for which a claim of indemnity could be made against Seller the Sellers hereunder, Purchaser the Purchasers shall use its their reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Seller the Sellers pays to Purchaser the Purchasers an amount in respect of a claim, and Purchaser the Purchasers subsequently recovers recover from a third party (other than an insurance provider or another Person entitled to indemnification by the Sellers hereunder) a sum which is referable to that claim, Purchaser the Purchasers shall forthwith repay such to the Sellers so much of the amount to Seller paid by it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by Purchaser the Purchasers in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Vanguard Health Systems Inc)
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Seller shall be under no liability to indemnify the Purchaser Group under Section 10.2.1 and no claim under Section 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s 's ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.2.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the HospitalsHospital, or
(B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH BusinessesAssets, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s 's policies, procedures and/or practices prior to the Effective Time); other than as specifically included in the Excluded Liabilities;
(iv) be made to the extent that such claim (or the basis therefor) is set forth in the Disclosure Schedule or any other schedule to this Agreement (without giving effect to any Disapproved Schedules), unless Seller's indemnification of the Purchaser Group is based on a provision hereof other than Section 10.2.1(a);
(v) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital;
(v) be made to the extent such claim relates to an obligation or liability for which Purchaser has agreed to indemnify Seller pursuant to Section 10.3;
(vi) be made to the extent that such claim would not have arisen but for Purchaser had knowledge of any breach of a voluntary act, omission or transaction carried out representation and warranty by Purchaser, TRH or their affiliates after the Effective Date;
(vii) be made to the extent such claim seeks Damages which are consequential in nature Seller (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.2.2(a)(vii) shall not apply to the extent of any payments which Purchaser is required to make to a third party which are in the nature of Consequential Damages; and
(viii) accrue to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a “Relevant Claim”) and (B) the total actual liability of Seller in respect of all Relevant Claims in the aggregate exceeds One Million Dollars ($1,000,000) (the “Aggregate Amount”), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims in the full amount of Damages provided, however, that the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a).
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price.
(c) If Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Seller pays to Purchaser an amount in respect of a claim, and Purchaser subsequently recovers from a third party a sum which is referable to that claim, Purchaser shall forthwith repay such amount to Seller less all reasonable costs, charges and expenses incurred by Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third party.contemplated by
Appears in 1 contract
Indemnification Limitations. Other than in respect of claims which arise out of or relate to the matters set forth in Section 1.2(b) (aPurchase Price Adjustment), Section 2.11 (Tax Matters), Section 5.3 (Tax Matters) or Section 8.1(d) (Transfer of TTP Assets) hereof or which are listed on Schedule 8.5 which shall not be subject to any minimum aggregate amount of claim, Buyer may not assert any claim for Losses under Section 8.1 hereof until the aggregate amount of such claims under this Agreement exceed $750,000, and then Buyer may only assert claims for the excess of such claims over $750,000 (the "BASKET"). The aggregate liability of Seller for all claims of Losses under Section 8.1 shall not exceed 15% of the Purchase Price; provided, that such limit does not apply in the event of an intentional or fraudulent misrepresentation or Losses arising out of or relating to Sections 2.11 (Tax Matters) and 5.3 (Tax Matters). Notwithstanding any provision herein to the contrary contained in this Agreementcontrary, Seller shall be under no liability to indemnify Purchaser under Section 10.2.1 and no claim under Section 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall not have been given by or on behalf of Purchaser to Seller any indemnification obligation hereunder arising in connection with the manner provided matters set forth in Section 10.42.8(b)(l) of the Disclosure Schedule (including, unless failure without limitation, any claim that the Company or its Subsidiaries did not act, or Seller did not cause the Company or its Subsidiaries to provide such notice act, in a timely manner does commercially reasonable matter to mitigate any losses or exposure to losses), or for any breach of a representation or warranty of Seller hereunder to the extent Buyer has actual knowledge of such breach of representation or warranty, or the specific facts or circumstances giving rise to such breach, on the Closing Date. Buyer shall not materially impair Seller’s ability be entitled to defend its rights, mitigate damages, seek indemnification from make any claim for a third party or otherwise protect its interests;
(ii) be made Loss to the extent that any loss may be recovered under a policy provision or allowance for the Loss has been made in the applicable Financial Statements or to the extent the Loss is otherwise accounted for or reflected in the applicable Financial Statements. For purposes of insurance in force on the date of lossthis Agreement, a liability that is contingent shall not constitute a Loss unless and until such contingent liability becomes an actual liability and is due and payable; provided, however, that this Section 10.2.2(a)(ii) sentence shall not apply preclude a party from asserting its right to the extent that coverage indemnification under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the Hospitals, or
(B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH Businesses, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices this Article VIII prior to the Effective Time); other than as specifically included time such contingent liability becomes an actual liability. All Losses recoverable by an Indemnified Party under Section 8.1 or 8.2 shall be net of any tax benefits and insurance proceeds received by the Indemnified Party or the insurance proceeds which would have been recoverable had the insurance coverage set forth in the Excluded Liabilities;
(iv) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital;
(v) be made to the extent such claim relates to an obligation or liability for which Purchaser has agreed to indemnify Seller pursuant to Section 10.3;
(vi) be made to the extent that such claim would not have arisen but for a voluntary act, omission or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date;
(vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss Disclosure Schedule been continued. For purposes of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.2.2(a)(vii) shall not apply to the extent of any payments which Purchaser is required to make to a third party which are in the nature of Consequential Damages; and
(viii) accrue to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a “Relevant Claim”) and (B) the total actual liability of Seller in respect of all Relevant Claims in the aggregate exceeds One Million Dollars ($1,000,000) (the “Aggregate Amount”), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims in the full amount of Damages provided, however, that the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a).
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price.
(c) If Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce determining the amount of any tax benefit pursuant to the claimpreceding sentence, the marginal combined federal and state income tax rate of Buyer shall be deemed to be 40%. If Seller pays All indemnification payments made under this Article VIII shall be deemed an adjustment to Purchaser an amount in respect of a claim, and Purchaser subsequently recovers from a third party a sum which is referable to that claim, Purchaser shall forthwith repay such amount to Seller less all reasonable costs, charges and expenses incurred the Purchase Price unless otherwise required by Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third partylaw.
Appears in 1 contract
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Seller shall be under no liability to indemnify Purchaser under Section 10.2.1 and no claim under Section 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Seller’s ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.2.2(a)(ii10.2.2(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by or otherwise cannot be recovered from the applicable insurance carriercarrier after the use of commercially reasonable efforts to effect such recovery;
(iii) be made to the extent that such claim relates to a liability arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the Hospitals, or
(B) the use, ownership or operation of any of the Assets or the assets comprising any of the TRH BusinessesAssets, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices prior to the Effective Time)Closing Date; other than as specifically included in the Excluded Liabilities;
(iv) be made if and to the extent that proper provision such claim (or reserve was made for the matter giving rise basis therefor) is set forth in the Disclosure Schedule, any Exhibit or Schedule to the claim in Net Working Capitalthis Agreement;
(v) be made to the extent that Purchaser had knowledge of (A) any breach of a representation and warranty by Seller (as contemplated by Section 3.9) or (B) other indemnifiable event, on or prior to the Closing Date, and did not notify Seller of such knowledge as contemplated by this Agreement;
(vi) be made to the extent such claim relates to an obligation or liability for which Purchaser has agreed to indemnify Seller pursuant to Section 10.3;
(vivii) be made to the extent that such claim would not have arisen but for a voluntary act, omission or transaction carried out by Purchaser, TRH Purchaser or their its affiliates after the Effective Date;
(vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.2.2(a)(vii) shall not apply to the extent of any payments which Purchaser is required to make to a third party which are in the nature of Consequential Damages; and
(viii) accrue to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) 10.2.1 exceeds Five Thousand Dollars ($5,000) (a “"Relevant Claim”") and (B) the total actual liability of Seller in respect of all Relevant Claims with respect to any particular Hospital in the aggregate exceeds One Million Dollars one-half percent ($1,000,0000.5%) of the portion of the Purchase Price attributable to any such particular Hospital pursuant to Schedule 11.1(b) (the “"Aggregate Amount”"), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) 10.2.1 for all Relevant Claims in the full amount of Damages providedwith respect to such particular Hospital, however, that including those Relevant Claims comprising the Aggregate Amount Amount. Notwithstanding the foregoing, the limitation set forth in this subsection 10.2.2(a)(viii) shall be inapplicable not apply to any claim by Purchaser claims for indemnification as a result of pursuant to (A) Section 10.2.1(iii) which are based upon liabilities described in Section 1.12(a), (e), (f) or (h), and (B) Section 10.2.1(i) which are based upon a breach by Seller of the provisions of representations and warranties made in Section 2.6(a)2.13.
(b) Notwithstanding any other provision of this Agreement to the contrary contained in this Agreementcontrary, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price.
(c) If Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Seller hereunder, Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Seller pays to Purchaser an amount in respect of a claim, and Purchaser subsequently recovers from a third party a sum which is referable to that claim, Purchaser shall forthwith repay such amount to Seller less all reasonable costs, charges and expenses incurred by Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third party.any
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