Common use of Indemnity Caps Clause in Contracts

Indemnity Caps. (a) In no event shall the Seller have any liability or obligation whatsoever to the Buyer Indemnified Parties for Losses pursuant to Section 9.01(a), Section 9.01(e) and Section 9.01(f) in excess of $3,000,000 (the “Cap”); provided, however, that the foregoing limitation shall not apply to Losses arising from the inaccuracy or breach of a Fundamental Representation or Warranty. (b) Subject to Section 9.04(a), solely with respect to Losses for which the Buyer Indemnified Parties seek indemnification pursuant to Section 9.01(e), the Buyer Indemnified Parties shall only be entitled to recover fifty percent (50%) of such Losses until the aggregate amount of all Losses pursuant to Section 9.01(e) equal $3,000,000, and thereafter shall be entitled to recover one hundred percent (100%) of such Losses in excess of $3,000,000 in the aggregate. By way of example, if the aggregate amount of Losses pursuant to Section 9.01(e) equal $3,500,000, then the Buyer Indemnified Parties would be entitled to recover $2,000,000 (i.e., fifty percent (50%) of $3,000,000 plus one hundred percent (100%) of $500,000). (c) In no event shall the Buyer Indemnitors have any liability or obligation whatsoever to the Seller Indemnified Parties for Losses pursuant to Section 9.02(a) and Section 9.02(d) in excess of the Cap; provided, however, that the foregoing limitation shall not apply to Losses arising from the inaccuracy or breach of (i) a Buyer Fundamental Representation or Warranty or (ii) any representation or warranty made in Section 6.06 (Capitalization); provided, further, that in the case of the inaccuracy or breach of Section 6.06 (Capitalization), in no event shall the Buyer Indemnitors have any liability or obligation whatsoever to the Seller Indemnified Parties for such Losses pursuant to Section 9.02(a) in excess of $18,000,000. (d) Without limiting the foregoing, the Buyer Indemnified Parties may not assert any claim (including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) against the Seller (or any of its Affiliates) pursuant to, and the Seller (and its Affiliates), as applicable, shall not be liable for any Losses under, this Article IX (or otherwise, including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim or Section 9.01(a) for the inaccuracy or breach of any Fundamental Representation or Warranty) to the extent the aggregate amount of all Losses claimed or arising pursuant to this Article IX is greater than the Purchase Price Cap. (e) Without limiting the foregoing, the Seller Indemnified Parties may not assert any claim (including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) against the Buyer Indemnitors (or any of their Affiliates) pursuant to, and the Buyer Indemnitors (and their Affiliates), as applicable, shall not be liable for any Losses under, (i) Section 9.02(a) for the inaccuracy or breach of a Buyer Fundamental Representation or Warranty, (ii) Section 9.02(b), (iii) Section 9.02(c) (in each case of the foregoing clauses (i) through (iii), including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) or (iv) Section 9.02(a) or Section 9.02(d) for any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim arising from the inaccuracy or breach of any representation or warranty made by any Buyer Indemnitor in this Agreement other than a Buyer Fundamental Representation or Warranty, to the extent the aggregate amount of all Losses claimed or arising pursuant to the items referenced in the foregoing clauses (i) through (iv) is greater than the amount equal to the sum of the Cash Purchase Price plus the Positive Adjustment Amount (if any, as finally determined pursuant to Section 2.04 above).

Indemnity Caps. (a) In no event shall the Seller have any liability or obligation whatsoever Notwithstanding anything to the Buyer Indemnified Parties contrary set forth in this Article VIII or any other provision of this Agreement, the aggregate liability of the Company Shareholder for Losses pursuant to Damages under Section 9.01(a), Section 9.01(e) and Section 9.01(f) in excess of 8.1 shall not exceed $3,000,000 20,000,000 (the “Indemnity Cap”); provided, howeverthat: (i) the aggregate liability of the Company Shareholder for Damages under Section 8.1(a) relating to a breach of the representations and warranties other than the Fundamental Representations, together with all other Damages under any other provision of this Agreement other than those related to Exempt Taxes, Section 8.1(d), Section 8.1(e), Section 8.1(f), Section 8.1(g) and Section 8.1(h), shall be the lesser of (1) $20,000,000 and (2) an amount as determined by reducing $20,000,000 by $2,500,000 at the end of each calendar quarter following the Closing Date (each quarter, the new amount shall be referred to as the “Adjusted Cap”) thus reducing quarterly the aggregate liability of the Company Shareholder for Damages under Section 8.1(a) relating to a breach of the representations and warranties other than Fundamental Representations until such aggregate liability, together with all other Damages under any other provision of this Agreement other than those related to Exempt Taxes, Section 8.1(d), Section 8.1(e), Section 8.1(f), Section 8.1(g) and Section 8.1(h), to $0 at the end of the eighth calendar quarter following the Closing Date; provided, that the foregoing limitation amount of each scheduled quarterly reduction (the “Quarterly Reduction Amount”) shall not apply to Losses arising from be reduced by the inaccuracy or breach amount of a Fundamental Representation or Warranty. (b) Subject to any pending claims for indemnification under Section 9.04(a), solely with respect to Losses for which 8.1 as of the Buyer Indemnified Parties seek indemnification pursuant to Section 9.01(e), the Buyer Indemnified Parties shall only be entitled to recover fifty percent (50%) date of such Losses until the aggregate amount of all Losses pursuant to Section 9.01(e) equal $3,000,000proposed quarterly reduction, and thereafter shall be entitled to recover one hundred percent (100%) of such Losses but in excess of $3,000,000 in the aggregate. By way of example, if the aggregate amount of Losses pursuant to Section 9.01(e) equal $3,500,000, then the Buyer Indemnified Parties would be entitled to recover $2,000,000 (i.e., fifty percent (50%) of $3,000,000 plus one hundred percent (100%) of $500,000). (c) In no event shall the Buyer Indemnitors have any liability or obligation whatsoever to the Seller Indemnified Parties for Losses pursuant to Section 9.02(a) and Section 9.02(d) in excess of the Cap; provided, however, that the foregoing limitation shall not apply to Losses arising from the inaccuracy or breach of (i) a Buyer Fundamental Representation or Warranty or any Quarterly Reduction Amount be reduced below zero and (ii) any representation or warranty made in Section 6.06 (Capitalization); provided, further, that in the case of the inaccuracy or breach of Section 6.06 (Capitalization), in no event shall the Buyer Indemnitors have any liability or obligation whatsoever indemnification claim reduce a Quarterly Reduction Amount to the Seller Indemnified Parties for extent such Losses pursuant claim has previously reduced any prior Quarterly Reduction Amount; provided further that to Section 9.02(a) in excess the extent that a portion of $18,000,000a pending indemnification claim has not reduced a Quarterly Reduction Amount, such unused portion of a pending indemnification claim shall be carried forward and applied to reduce by the amount of such unused portion the next Quarterly Reduction Amount. (dii) Without limiting subject to the foregoingIndemnity Cap (and not in addition to the Indemnity Cap), the Buyer Indemnified Parties may not assert any claim aggregate liability of the Company Shareholder for Damages under Section 8.1(a) relating to a breach of the representations and warranties set forth in Section 2.11 (including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) against the Seller (or any of its Affiliates) pursuant to, and the Seller (and its AffiliatesIntellectual Property), as applicableshall not, in the aggregate, exceed $15,000,000 (which amount shall not be liable for any Losses under, this Article IX reduced quarterly); and (or otherwise, including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim or Section 9.01(aiii) for the inaccuracy or breach of any Fundamental Representation or Warranty) to the extent the aggregate amount liability of all Losses claimed or arising pursuant to this Article IX is greater than the Purchase Price Cap. (e) Without limiting the foregoing, the Seller Indemnified Parties may not assert any claim (including any claim Company Shareholder for fraud, intentional misrepresentation, willful misconduct or other similar claim) against the Buyer Indemnitors (or any of their Affiliates) pursuant to, and the Buyer Indemnitors (and their Affiliates), as applicable, shall not be liable for any Losses under, Damages (i) under Section 9.02(a8.1(a) for the inaccuracy or relating to a breach of a Buyer Fundamental Representation or Warrantythe representations and warranties set forth in (A) Section 2.8 (Tax Matters) with respect to any claim relating to Exempt Taxes and (B) Section 3.1 (Title to Shares), (ii) under Section 9.02(b)8.1(c) with respect to any claim relating to Exempt Taxes, (iii) under Section 9.02(c) (in each case of the foregoing clauses (i) through (iii8.1(d), including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) or (iv) under Section 9.02(a8.1(e), (v) or under Section 9.02(d8.1(f), (vi) for any claim for under Section 8.1(g), (vii) under Section 8.1(h) and (viii) relating to claims based on fraud, intentional misrepresentationtogether with all other Damages under any provision of this Agreement, willful misconduct or other similar claim arising from the inaccuracy or breach of any representation or warranty made by any Buyer Indemnitor in this Agreement other than a Buyer Fundamental Representation or Warrantyshall not, to the extent the aggregate amount of all Losses claimed or arising pursuant to the items referenced in the foregoing clauses (i) through (iv) is greater than aggregate, exceed the amount equal to the sum of the Cash Actual Purchase Price plus the Positive Adjustment Amount (if any, as finally determined pursuant to Section 2.04 above)Price.

Indemnity Caps. Notwithstanding anything to the contrary set forth in this Agreement: (a) In no event The maximum aggregate amount of Claims and Losses for which Seller shall the Seller have any liability or obligation whatsoever be responsible to the Buyer Indemnified Parties for Losses pursuant to Section 9.01(a), Section 9.01(e) and Section 9.01(f) in excess of this Article 8 shall be $3,000,000 (the “Cap”)7,000,000; provided, however, that notwithstanding any other provisions of this Agreement, the foregoing limitation indemnity cap of $7,000,000 (the “Seller’s Indemnity Cap”) shall be subject to the following limitations and reductions: (i) in no event shall the Cash Consideration under Section 2.4(a) or the Closing Shares under Section 2.4(c) be subject to any claims under this Article 8 by Buyer or Buyer Affiliates; (1) if any claim or claims are made under this Article 8 by Buyer or Buyer Affiliates prior to the due date for payment to Seller of $3,000,000 in cash pursuant to Section 2.4(b), then the amount of the excess, if any, of such $3,000,000 over the amount of such claim or claims shall not apply thereafter be subject to any claim under this Article 8 by Buyer or Buyer Affiliates, or (2) if no claim under this Article 8 is made by Buyer or Buyer Affiliates prior to the due date for payment to Seller of $3,000,000 in cash pursuant to Section 2.4(b), then such $3,000,000 shall not thereafter be subject to any claim under this Article 8 by Buyer or Buyer Affiliates; (iii) from and after June 30, 2023 and prior to June 30, 2024, in respect of any claim first made by Buyer or Buyer Affiliates after June 30, 2023, Seller’s Indemnity Cap shall be reduced to the lesser of (A) $7,000,000 minus the aggregate amount of Claims and Losses arising incurred by Buyer or Buyer Affiliates with respect to which a claim has been made prior to June 30, 2023 or (B) $3,500,000 (the “Seller’s Revised Indemnity Cap”); and (iv) from and after June 30, 2024, the inaccuracy or breach of a Fundamental Representation or WarrantyBuyer and Buyer Affiliates shall not be entitled to make any new indemnity claims pursuant to Article 8. (b) Subject to Section 9.04(a), solely with respect to The maximum aggregate amount of Claims and Losses for which the Buyer Indemnified Parties seek indemnification shall be responsible to Seller pursuant to Section 9.01(e), the Buyer Indemnified Parties shall only be entitled to recover fifty percent (50%) of such Losses until the aggregate amount of all Losses pursuant to Section 9.01(e) equal $3,000,000, and thereafter this Article 8 shall be entitled to recover one hundred percent (100%) of such Losses in excess of $3,000,000 in the aggregate. By way of example, if the aggregate amount of Losses pursuant to Section 9.01(e) equal $3,500,000, then the Buyer Indemnified Parties would be entitled to recover $2,000,000 (i.e., fifty percent (50%) of $3,000,000 plus one hundred percent (100%) of $500,000). (c) In no event shall the Buyer Indemnitors have any liability or obligation whatsoever to the Seller Indemnified Parties for Losses pursuant to Section 9.02(a) and Section 9.02(d) in excess of the Cap7,000,0000; provided, however, that notwithstanding any other provisions of this Agreement, the foregoing limitation indemnity cap of $7,000,000 (the “Buyer’s Indemnity Cap”) shall not apply be subject to Losses arising from the inaccuracy or breach of following limitations and reductions: (i) a Buyer Fundamental Representation or Warranty or (ii) any representation or warranty made in Section 6.06 (Capitalization); providedfrom and after June 30, further2023 and prior to June 30, that in the case of the inaccuracy or breach of Section 6.06 (Capitalization)2024, in no event respect of any claim first made by Seller or Seller Affiliates after June 30, 2023, Buyer’s Indemnity Cap shall the Buyer Indemnitors have any liability or obligation whatsoever be reduced to the Seller Indemnified Parties for such Losses pursuant to Section 9.02(alesser of (A) in excess of $18,000,000. (d) Without limiting the foregoing, the Buyer Indemnified Parties may not assert any claim (including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) against the Seller (or any of its Affiliates) pursuant to, and the Seller (and its Affiliates), as applicable, shall not be liable for any Losses under, this Article IX (or otherwise, including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim or Section 9.01(a) for the inaccuracy or breach of any Fundamental Representation or Warranty) to the extent 7,000,000 minus the aggregate amount of all Claims and Losses claimed incurred by Seller or arising pursuant Seller Affiliates with respect to this Article IX is greater than which a claim has been made prior to June 30, 2023 or (B) $3,500,000 (the Purchase Price “Buyer’s Revised Indemnity Cap.”); and (eii) Without limiting the foregoingfrom and after June 30, 2024, the Seller Indemnified Parties may not assert any claim (including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) against the Buyer Indemnitors (or any of their Affiliates) pursuant to, and the Buyer Indemnitors (and their Affiliates), as applicable, Seller Affiliates shall not be liable for entitled to make any Losses under, (i) Section 9.02(a) for the inaccuracy or breach of a Buyer Fundamental Representation or Warranty, (ii) Section 9.02(b), (iii) Section 9.02(c) (in each case of the foregoing clauses (i) through (iii), including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) or (iv) Section 9.02(a) or Section 9.02(d) for any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim arising from the inaccuracy or breach of any representation or warranty made by any Buyer Indemnitor in this Agreement other than a Buyer Fundamental Representation or Warranty, to the extent the aggregate amount of all Losses claimed or arising new indemnity claims pursuant to the items referenced in the foregoing clauses (i) through (iv) is greater than the amount equal to the sum of the Cash Purchase Price plus the Positive Adjustment Amount (if any, as finally determined pursuant to Section 2.04 above)Article 8.

Indemnity Caps. Entity Seller shall have no liability to Purchaser, Venture (as constituted after the Closing) or the Owners (as constituted after Closing) with respect to any indemnity contained herein to the extent the losses, liabilities costs, damages or expenses or the conditions or circumstances giving rise thereto were known to a Kimco Knowledge Party, or caused by an act or omission of a Kimco Party, or for which Purchaser already received a credit pursuant to this Agreement. (a) In no event shall the Seller have any liability or obligation whatsoever With respect to the Buyer Indemnified Parties for Losses pursuant to indemnities contained in Section 9.01(a10.1.1(a) and (b), Section 9.01(eEntity Seller shall have no liability to Purchaser, Venture (as constituted after the Closing) and Section 9.01(for the Owners (as constituted after Closing) under the indemnities in an amount in excess of $3,000,000 Bucket 2. Entity Seller’s aggregate liability under the representations (other than the “Cap”); providedEntity Reps) contained in Section 8.1 and the indemnities contained in Section 10.1.1(a) and (b) shall in no event exceed the amount of Bucket 2, howeverin the aggregate. Notwithstanding anything in this Agreement to the contrary, that the foregoing limitation indemnity contained in Section 10.1.1(a)(vi) shall not apply be limited by the amount in Bucket 2. With respect to Losses arising from the inaccuracy indemnities contained in Section 10.1.1(a)(iii) and (vi), Purchaser agrees to use reasonable efforts to pursue insurance for such tort claims and corporate liabilities to the extent covered by insurance before making a claim against DRA or breach of a Fundamental Representation or WarrantyEntity Seller. (b) Subject to Section 9.04(a), solely with With respect to Losses for which the Buyer Indemnified Parties seek indemnification pursuant indemnities contained in Section 10.1.2, Entity Seller shall no have liability to Section 9.01(e)Purchaser, Venture (as constituted after the Buyer Indemnified Parties shall only be entitled to recover fifty percent Closing) or the Owners (50%as constituted after Closing) of such Losses until under the aggregate indemnities in an amount of all Losses pursuant to Section 9.01(e) equal $3,000,000, and thereafter shall be entitled to recover one hundred percent (100%) of such Losses in excess of $3,000,000 Bucket 1 in the aggregate. By way of example, if Entity Seller’s aggregate liability under Section 6.2 and the aggregate indemnities contained in Section 10.1.2 shall in no event exceed the amount of Losses pursuant to Section 9.01(e) equal $3,500,000Bucket 1, then in the Buyer Indemnified Parties would be entitled to recover $2,000,000 (i.e., fifty percent (50%) of $3,000,000 plus one hundred percent (100%) of $500,000)aggregate. (c) In no event shall the Buyer Indemnitors have any liability or obligation whatsoever Notwithstanding anything in this Agreement to the Seller Indemnified Parties for Losses pursuant to Section 9.02(a) and Section 9.02(d) in excess of the Cap; provided, however, that the foregoing limitation shall not apply to Losses arising from the inaccuracy or breach of (i) a Buyer Fundamental Representation or Warranty or (ii) any representation or warranty made in Section 6.06 (Capitalization); provided, further, that in the case of the inaccuracy or breach of Section 6.06 (Capitalization), in no event shall the Buyer Indemnitors have any liability or obligation whatsoever to the Seller Indemnified Parties for such Losses pursuant to Section 9.02(a) in excess of $18,000,000. (d) Without limiting the foregoingcontrary, the Buyer Indemnified Parties may not assert any claim (including any claim Purchaser agrees that all settlements by Purchaser or its direct or indirect subsidiaries with respect to tenant claims under the Leases for fraud, intentional misrepresentation, willful misconduct overcharges or other similar claim) against the Seller (or any of its Affiliates) pursuant to, and the Seller (and its Affiliates), as applicable, landlord defaults shall not be liable for any Losses under, this Article IX (or otherwise, including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim or Section 9.01(a) for the inaccuracy or breach of any Fundamental Representation or Warranty) reduce Bucket 2 to the extent the aggregate amount of all Losses claimed or arising pursuant to this Article IX is greater than the Purchase Price Capthereof. (e) Without limiting the foregoing, the Seller Indemnified Parties may not assert any claim (including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) against the Buyer Indemnitors (or any of their Affiliates) pursuant to, and the Buyer Indemnitors (and their Affiliates), as applicable, shall not be liable for any Losses under, (i) Section 9.02(a) for the inaccuracy or breach of a Buyer Fundamental Representation or Warranty, (ii) Section 9.02(b), (iii) Section 9.02(c) (in each case of the foregoing clauses (i) through (iii), including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) or (iv) Section 9.02(a) or Section 9.02(d) for any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim arising from the inaccuracy or breach of any representation or warranty made by any Buyer Indemnitor in this Agreement other than a Buyer Fundamental Representation or Warranty, to the extent the aggregate amount of all Losses claimed or arising pursuant to the items referenced in the foregoing clauses (i) through (iv) is greater than the amount equal to the sum of the Cash Purchase Price plus the Positive Adjustment Amount (if any, as finally determined pursuant to Section 2.04 above).