Liability Limits. Notwithstanding anything to the contrary set forth herein: (a) The maximum amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller. (b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification. (c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim. (d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Primis Financial Corp.), Stock Purchase Agreement (Primis Financial Corp.)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) Solely with respect to a breach of the Operational Representations, no amounts of indemnity shall be payable pursuant to Section 7.1(a) or Section 7.2(a) unless and until the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall have suffered Buyer Losses or Seller Losses, respectively, in excess of One Hundred Eighty Five Thousand Dollars ($185,000) (the “Threshold Amount”) in the aggregate, after which point the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall be entitled to recover only Buyer Losses or Seller Losses, respectively, with respect to claims for indemnification pursuant to Section 7.1 or Section 7.2 in excess of the Threshold Amount.
(b) Solely with respect to a breach of the Operational Representations, Sellers shall not be liable for any individual or series of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards the Threshold Amount).
(c) The maximum aggregate amount of Buyer Losses that may be recovered (i) against Sellers under Section 7.1(a) shall not exceed the Buyer Indemnified Parties are entitled to recover from Seller pursuant to aggregate amount of the Indemnification Escrow Amount, or (ii) against Sellers under Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller7.1(b) shall not exceed, in the aggregate, an amount equal to $1,000,000the Purchase Price. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will It is acknowledged and agreed that (A) the aggregate amount of Buyer Losses that may be recovered against Sellers under Section 7.1(c), and (B) the Buyer Indemnified Parties are entitled to recover from aggregate amount of Seller pursuant to Losses that may be recovered against Buyers under Section 11.01(a) exceed the total purchase price paid to Seller7.2, shall not be limited in amount.
(bd) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to In any claim for indemnification pursuant under this Agreement, neither Sellers nor Buyers shall be required to Section 11.01(a) with respect to the breach indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of a representation profits, loss of revenues, loss of any multiple of reduced cash flow or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to earnings or similar measures of the Company’s repurchase obligations under the contracts identified on Section 11.05(b) , diminution in value, loss of the Disclosure Scheduleanticipated profits, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) interference with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policyCompany operations, or an indemnificationloss of lenders, contribution, investors or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar paymentsbuyers; provided, however, that no this limitation shall not apply if, and solely to the extent that, an Indemnified Party is seeking to obtain through indemnification reimbursement of Losses resulting from an award in a Third Party Claim against such Indemnified Party of consequential, exemplary or punitive damages.
(e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.
(f) The Indemnified Party shall be required take all commercially reasonable steps to institute any legal proceeding against any third Person. The amount of any Buyer mitigate Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or related group of Buyer expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree that the limitations set forth in Section 7.5(a), Section 7.5(b) and Section 7.5(c) shall not apply with respect to any Losses if recovery has already been obtained pursuant arising out of, resulting from or relating to Section 2.04any action or inaction that constitutes fraud.
Appears in 2 contracts
Samples: Membership Interest and Asset Purchase Agreement, Membership Interest and Asset Purchase Agreement (Crawford & Co)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
in this Agreement, the KHC Indemnified Parties shall not make a claim against the Company or the Company Shareholders for indemnification under this Article VI or for a breach of any representation, warranty or covenant under this Agreement, unless and until the aggregate costs and damages incurred by all KHC Indemnified Parties exceed one hundred fifty thousand dollars ($150,000) (the "Floor"), in which event the KHC Indemnified Parties may claim indemnification for any costs and damages in excess of the Floor. However, the Floor shall not apply to any losses arising out of any of the following: (a) The maximum amount of Buyer Losses that any claim asserted against the Buyer KHC Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(aby or on behalf of Angela Powers; (b) any fraud by the Company Shareholders; (c) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or (d) any failure to retain, as a result of breaches of Seller Fundamental RepresentationsClosing, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, Net Working Capital in the aggregate, an amount equal less than $3,650,000 (the "Excepted Claims"). With respect to $1,000,000the Excepted Claims, the KHC Indemnified Parties may assert a claim against the Company or Company Shareholders and seek indemnification without regard to the Floor. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in In no event will the aggregate amount Company and Company Shareholders be required to indemnify KHC Indemnified Parties under this Article VI or be liable to any KHC Indemnified Party for breach of Buyer Losses any representation, warranty or covenant under this Agreement, for costs and damages in excess of Seven Million Dollars ($7,000,000). The Parties acknowledge and agree that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained foregoing indemnification provisions in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable6, shall be payable by Seller pursuant to a claim the exclusive remedy of the KHC Indemnified Parties against the Company and Company Shareholders for indemnification.
(c) If any Buyer Losses contractual indemnity or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation breach of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Personthis Agreement. The amount of any Buyer Losses or Seller Losses subject KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered Company Shareholders in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimentering into this Agreement.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 2 contracts
Samples: Merger Agreement (Celerity Group Inc), Merger Agreement (Celerity Group Inc)
Liability Limits. Notwithstanding anything herein to the contrary set forth hereincontrary, any recovery by an Indemnified Party pursuant to this Article XI shall be limited as follows:
(a) The maximum amount of Buyer Stagecoach I and Stagecoach Energy shall not be obligated to indemnify the Purchaser Indemnitees for Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliancearising under Sections 11.2(a)(i) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed11.2(a)(iv), in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will unless and until the aggregate amount of Buyer such Losses that exceeds $2,000,000, in which event Stagecoach I and Stagecoach Energy shall indemnify the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim Purchaser Indemnitees only for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar paymentsamount; provided, however, that no Indemnified Party the foregoing limitation shall be required not apply with respect to institute any legal proceeding against any third Person. The amount Losses that arise out of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise relate to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds representations or indemnitywarranties made in Sections 3.1, contribution3.2, 3.3, 5.1, 5.2, 5.3, 5.10, 5.25 or similar payments after 5.27.
(b) Stagecoach II shall not be obligated to indemnify the settlement of any indemnification claim Purchaser Indemnitees for Losses arising under Section 11.01 Sections 11.2(b)(i) or Section 11.0211.2(b)(iv), as applicable, such Indemnified Party shall refund to unless and until the Indemnifying Party the aggregate amount of such insurance proceeds Losses exceeds $10,000, in which event Stagecoach II shall indemnify the Purchaser Indemnitees only for Losses in excess of such amount; provided, however, that the foregoing limitation shall not apply with respect to Losses that arise out of or indemnity, contribution, or similar payments, up relate to the representations or warranties made in Sections 4.1 or 4.2.
(c) The Purchasers shall not be obligated to indemnify the Seller Indemnitees for Seller Losses arising under Section 11.3(a), unless and until the aggregate amount actually received of such Seller Losses exceeds $2,000,000, in connection which event the Purchasers shall indemnify the Seller Indemnitees only for Seller Losses in excess of such amount; provided, however, that the foregoing limitation shall not apply with such indemnification claimrespect to Losses that arise out of or relate to the representations or warranties in Sections 6.1, 6.2 or 6.5.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or The indemnity in respect obligations of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained Stagecoach I and Stagecoach Energy pursuant to Section 2.0411.2(a)(i) shall be limited in the aggregate to $25,500,000; provided, however, that the foregoing limitation shall not apply with respect to Losses that arise out of or relate to the representations or warranties in Sections 3.1, 3.2, 3.3, 5.1, 5.2, 5.3, 5.10, 5.25 or 5.27, which shall be limited as provided in Section 11.5(e).
(e) Except as set forth in Section 11.5(d), the indemnity obligations of Stagecoach I and Stagecoach Energy pursuant to Section 11.2(a) shall be limited in the aggregate to $125,000,000.
(f) The indemnity obligations of Stagecoach II pursuant to Section 11.2(b)(i) shall be limited in the aggregate to $2,500,000; provided, however, that the foregoing limitation shall not apply with respect to Losses that arise out of or relate to the representations or warranties in Sections 4.1 or 4.2, which shall be limited as provided in Section 11.5(g).
(g) Except as set forth in Section 11.5(f), the indemnity obligations of Stagecoach II pursuant to Section 11.2(b) shall be limited in the aggregate to $15,000,000.
(h) The indemnity obligations of the Purchasers pursuant to Section 11.3(a) shall be limited in the aggregate to $25,500,000; provided, however, that the foregoing limitation shall not apply with respect to Losses that arise out of or relate to the representations or warranties in Sections 6.1, 6.2 or 6.5.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Inergy Holdings, L.P.)
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, except in the case of a claim for Fraud, the Equity Holders’ obligation to indemnify, defend and hold Buyer Indemnified Parties harmless, and Buyer’s obligation to indemnify, defend and hold the Equity Holders Indemnified Parties harmless, shall be limited as follows:
(a) The maximum amount No amounts of Buyer Losses that indemnity shall be payable pursuant to Section 9.1(a) or Section 9.2(a) unless and until (i) each claim or series of claims arising from the Buyer same or substantially similar facts or circumstances exceeds $50,000 (the “De Minimis Threshold”) and (ii) the applicable Indemnified Parties are shall have suffered Losses in excess of $4,000,000 (the “Deductible Amount”) in the aggregate, in which case such Indemnified Parties shall be entitled to recover from Seller only Losses in excess of the Deductible Amount; provided that amounts of indemnity for Losses pursuant to Section 11.01(aSection 9.1(a) or Section 9.2(a), as applicable, with respect to any breach of any Company Fundamental Representation or any Buyer Fundamental Representation, as applicable, shall not be subject to the De Minimis Threshold or the Deductible Amount;
(b) In no event shall the aggregate amount of indemnity required to be paid by the Equity Holders hereunder or under any Support Agreement or Option Holder Acknowledgment (i) pursuant to Sections 9.1(a) (other than as pursuant to Section 9.1(a) for breach of a result Company Fundamental Representation), Section 9.1(b) and, for the avoidance of breaches of Seller Fundamental Representationsdoubt, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, 5.4 exceed the Indemnity Escrow Amount in the Indemnity Escrow Fund in the aggregate, an and (ii) pursuant to Sections 9.1(a) (with respect to a claim for breach of a Company Fundamental Representation), 9.1(c), and 9.1(d) exceed $320,000,000 in the aggregate (clauses (i) and (ii), as applicable, the “Indemnification Cap”). If the amount equal of any Buyer Loss exceeds the applicable Indemnification Cap, no Buyer Indemnified Party shall be entitled to $1,000,000recover any such shortfall from any Equity Holder (it being understood that nothing in this Section 9.5(b) shall limit Buyer’s ability to recover Buyer Losses under the Buyer Rep and Warranty Policy). Without limiting the foregoing, except in the case of fraudulent misrepresentation by SellerFraud, in no event will shall the aggregate amount of Buyer Losses that indemnity required to be paid by the Buyer Indemnified Parties are entitled to recover from Seller Equity Holders pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation 9.1 or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) otherwise exceed $75,000 (320,000,000 in the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnificationaggregate.
(c) If Subject to the other provisions of this Section 9.5, any claim by a Buyer Indemnified Party to recover Buyer Losses hereunder shall be recoverable (i) first, against the Indemnity Escrow Fund pursuant to the terms of the Escrow Agreement and (ii) second, for any claim for Buyer Losses under Section 9.1(a), against the Buyer Rep and Warranty Policy and (iii) third, any remaining amount of Buyer Losses (subject to the Indemnification Cap set forth in Section 9.5(b)(ii) shall be payable by the Equity Holders pro rata based on their respective share of the Merger Consideration pursuant to the terms of the Support Agreements and Option Holder Acknowledgments;
(d) In no event shall the aggregate amount of indemnity required to be paid by the Buyer pursuant to Section 9.2 or otherwise exceed $320,000,000;
(e) The amount of each claim for Buyer Losses or Seller Tax Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the a Buyer Indemnified Party shall be deemed to be an amount equal to any payments from the Indemnity Escrow Fund shall be limited to, the amount of such Buyer Losses or Tax Losses that remain after deducting therefrom (i) any Tax benefit actually realized by a Buyer Indemnified Party or any Affiliate thereof with respect to Buyer Losses or items giving rise to such claim for indemnification to the extent the Tax benefit is actually realized in the year of the Buyer Loss or item giving rise to such a claim or the following two (2) taxable years, or a prior year and (ii) any third party insurance proceeds (net of any increase in insurance premium with respect thereto) and any indemnity, contributions or other similar payment actually received from any third party with respect thereto;
(f) The amount of indemnity payable pursuant to Section 9.1 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Closing Statement;
(g) Any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to collect (i) recover for such Loss under any available third party sources of recovery (including insurance proceeds or indemnitypolicies), contributionand (ii) mitigate such Loss after becoming aware thereof, or similar paymentsand an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable solely to the Indemnified Party’s failure to mitigate; provided, however, that no Indemnified and
(h) No Party shall be required deemed to institute have breached any legal proceeding against representation or warranty under this Agreement solely as a result of (i) any alteration, repeal or enactment of any Law after the Closing Date (even if such alteration, repeal or enactment is applied with retroactive effect) or (ii) any change in the accounting policies, practices or procedures adopted by Buyer and/or its Affiliates after the Closing Date; and
(i) In any case where a Buyer Indemnified Party recovers from any third Person. The party any amount in respect of a matter with respect to which the Equity Holders have indemnified Buyer pursuant to this Article IX (except, for the avoidance of doubt, for any amount recovered under the Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries Rep and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicableWarranty Policy), such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled promptly pay over to recover damages or obtain paymentStockholders’ Representative, reimbursementif during the applicable Claims Period or, restitution or indemnity to the Stockholders’ Representative (on behalf of the Equity Holders), if after the applicable Claims Period, the amount so recovered (but not in respect excess of the amount by which the Equity Holders have indemnified Buyer pursuant to this Agreement) net of any one Buyer Loss or related group costs of Buyer Losses if recovery has already been obtained pursuant to Section 2.04recovery.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Charles River Laboratories International Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum , the Purchaser Indemnified Parties shall not make a claim against any Member for indemnification under this Article IX for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, exceeds an amount equal to $1,000,000. Without limiting one-half of one percent (0.5%) of the foregoing, except in Purchase Price (the case of fraudulent misrepresentation by Seller“Purchaser Basket”), in no which event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Purchaser Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any make a claim for indemnification pursuant to Section 11.01(a) with respect to for all Purchaser Losses from the breach first dollar of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar paymentsPurchaser Losses; provided, however, that no Indemnified Party the Fundamental Obligations shall not be required subject to institute the Purchaser Basket. Notwithstanding any legal proceeding against any third Person. The other provision of this Agreement, the total aggregate amount of any Buyer the liability of the Members for Purchaser Losses or Seller Losses subject to (other than indemnification claims under Section 11.01 9.1 for breach of or inaccuracy of the Fundamental Representations or indemnification claims under Section 11.02, as applicable9.1 with respect to the Fundamental Covenants), shall be determined net limited to the Escrow Amount and any and all claims alleging, asserting or relating to Purchaser Losses (other than indemnification claims under Section 9.1 for breach of any third-party insurance or indemnity, contribution inaccuracy of the Fundamental Representation or similar proceeds that have actually been recovered indemnification claims under Section 9.1 with respect to the Fundamental Covenants) shall be made solely and exclusively under and in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection accordance with the facts giving rise terms of this Article IX and the Escrow Agreement and shall be satisfied solely and exclusively from the Escrow Amount (the “Purchaser Cap”). Except as expressly set forth in this Article IX, the aggregate amount of the liability of the Members for indemnification claims under Section 9.1 for breach of or inaccuracy of the Fundamental Representations or indemnification claims under Section 9.1 with respect to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party Fundamental Covenants shall refund be limited to the Indemnifying Party Purchase Price (the “Fundamental Obligation Cap”). Notwithstanding anything to the contrary set forth herein, the total aggregate amount of such insurance proceeds the liability of the Members for Purchaser Losses arising out of or indemnity, contribution, or similar payments, up relating to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party P-Project shall be entitled limited to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04the P-Project Cap.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (McBc Holdings, Inc.)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum total aggregate amount of Buyer Losses that the Buyer Liability of the applicable Indemnifying Party shall not exceed the applicable Cap; and no Indemnified Parties are entitled to recover from Seller Party shall be indemnified by an Indemnifying Party pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will ARTICLE XII for any Losses unless and until the aggregate amount of Buyer such Losses that exceeds $100,000 (the Buyer “Minimum Claim Amount”), after which the applicable Indemnified Parties are entitled Party shall be obligated for such aggregate Losses, including, but not limited to recover the Minimum Claim Amount, from Seller pursuant the first dollar, in an amount not to Section 11.01(a) exceed the total purchase price paid to Sellerapplicable Cap.
(b) Notwithstanding anything Payments by an Indemnifying Party pursuant to the contrary contained ARTICLE XII in this Article XI, (i) the Buyer Indemnified Parties respect of any Loss shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal limited to the amount of any Liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Repurchase Reserve as Indemnified Person in respect of the Closing Date (the “Repurchase Threshold”); and (ii) with respect any such Claim. The Indemnified Person shall use its commercially reasonable efforts to all recover under insurance policies or indemnity, contribution or other claims similar agreements for any Losses before seeking indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnificationunder this Agreement.
(c) If In no event shall any Buyer Losses Indemnifying Party be liable to any Indemnified Person for any punitive, incidental, exemplary, consequential, special or Seller Losses sustained by an Indemnified Party are covered by an insurance policyindirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement or any Transaction Document, or an indemnification, contribution, diminution of value or similar obligation any damages based on any type of another Person multiple (other than an Affiliate except to the extent such types of such Indemnified Partydamages constitute losses to a third party as a result of any Claim), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. .
(d) The amount of any Buyer Losses or Seller Losses subject indemnity obligation of any Indemnifying Party to indemnification under Section 11.01 or Section 11.02, as applicable, the Indemnified Parties provided in this Agreement shall be determined computed net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash received by the an Indemnified Party after deducting therefrom all Person (net of any deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of incurred with respect to such recoveries insurance Claims) in connection with the facts or as a result of any Claim giving rise to the right of indemnificationan indemnification Claim hereunder. If the indemnity amount is paid to the Indemnified Parties by any Indemnifying Party prior to the Indemnified Person’s actual receipt of insurance proceeds related thereto, the Indemnified Person shall, if permissible by the terms of the applicable policy, assign its right to such insurance and allow the Indemnifying Party actually to pursue collection of such insurance proceeds or, if such payment has been made by any of the Indemnifying Parties, and an Indemnified Person subsequently receives such insurance proceeds proceeds, then the Indemnified Person shall promptly pay to or indemnity, contribution, or similar payments after at the settlement direction of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds subsequently received (net of all related costs, expenses and other losses), but not more, in the aggregate, than the indemnity amount paid by the Indemnifying Party. Notwithstanding the foregoing, no Indemnified Person shall be required to (i) pursue such insurance prior to seeking indemnification under this ARTICLE XII or indemnity, contribution, or similar payments, up (ii) commence litigation to the amount actually received in connection with recover proceeds under such indemnification claiminsurance policies if it is unreasonable do so.
(de) No Buyer Indemnified Party Person shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity indemnification hereunder for any loss in respect of any one Buyer Loss Claim to the extent that (i) such loss would not have arisen but for the enactment of any legislation not in effect on the Closing Date or any change of any Law or administrative practice of any Governmental Authority after the Closing Date or any change in any generally accepted accounting principles after the Closing Date, including in each case any legislation or change which takes effect retrospectively, (ii) such loss has arisen as a result of any act or omission by the party seeking indemnification on or after the Closing Date (including without limitation resulting from any change in accounting principles, practices or methodologies) and to the extent of any loss arising from any breach by the party seeking indemnification of its obligations under this Agreement or the other Transaction Documents (in each case provided such party’s breach is a principal cause or principal contributing factor to such party’s Losses related group thereto), and (iii) such loss is offset by a corresponding gain accruing after the Closing Date, directly or indirectly, to the benefit of Buyer Losses if recovery has already been obtained pursuant the party seeking indemnification, as a direct result of the act, matter, omission or circumstance giving rise to Section 2.04such loss.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Lucas Energy, Inc.), Asset Purchase Agreement
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that , no Purchaser Indemnified Party shall be indemnified by the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in Shareholder under this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to X for any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: Purchaser Losses (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) unless such claim involves Purchaser Losses in excess of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General ThresholdSingle Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser Losses exceeds three-fourths of one percent (0.75%) of the Purchase Price (the “Deductible”), whereupon but only if such amounts Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a), after which the Shareholder shall only be obligated for such aggregate Purchaser Losses in excess of the Repurchase Threshold or Deductible.
(a) The total aggregate amount of the General Threshold, as applicable, liability of the Shareholder for Purchaser Losses shall be payable by Seller limited to ten percent (10%) of the Purchase Price (the “Cap”).
(b) Neither the Single Claim Amount nor the Deductible shall apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim for indemnificationor any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25.
(c) If any Buyer Losses or Seller Losses sustained Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party are covered by an insurance policy, (or an indemnification, contribution, the Company or similar obligation any of another Person (other than an Affiliate its Subsidiaries) in respect of any such Indemnified Party), the claim. The Indemnified Party shall use its commercially reasonable efforts to collect such recover under insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance policies or indemnity, contribution or other similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If agreements for any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any Losses before seeking indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimthis Agreement.
(d) No Buyer In no event shall any Indemnifying Party be liable to any Indemnified Party shall be entitled for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to recover the breach or alleged breach of this Agreement, or diminution of value or any damages or obtain payment, reimbursement, restitution or indemnity in respect based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04claim).
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Compressco Partners, L.P.)
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to shall not make a claim for indemnification under Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance10.1(a)(i) or breaches resulting from fraudulent or intentional misrepresentations by SellerSection 10.1(b)(i) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that exceeds Three Hundred Thousand Dollars ($300,000) (the Buyer “Deductible”), in which event the Purchaser Indemnified Parties are entitled may claim indemnification for all Purchaser Losses in excess of the Deductible, up to, but not to recover from Seller pursuant exceed a cap of Seven Million Five Hundred Thousand Dollars ($7,500,000) (the “Standard Representations Cap”). Notwithstanding the foregoing, (i) the Deductible shall not apply to Section 11.01(aany Purchaser Losses arising out of or related to a breach of the Extended Representations; (ii) the Deductible shall not apply to any Purchaser Losses arising out of or related to a breach of the Fundamental Representations, and the Shareholders shall be liable for all Purchaser Losses with respect thereto, up to, but not to exceed a cap of Thirty Million Dollars ($30,000,000) (“the total purchase price paid “Fundamental Representations Cap”), and (iii) none of the Deductible, the Standard Representations Cap or the Fundamental Representations Cap shall apply to Sellerany Purchaser Losses arising out of or related to fraud or willful misconduct and the Shareholders shall be liable for all Purchaser Losses with respect thereto. For purposes of this Article X, each representation and warranty shall be read without reference to any materiality or Material Adverse Effect qualification contained therein.
(b) Notwithstanding anything to the contrary contained in For purposes of this Article XIX, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover punitive or exemplary damages; provided, that the foregoing shall not apply to Losses arising out of or related to fraud, willful misconduct or a Third-Party Claim, and the applicable Indemnifying Party shall be liable for all Losses with respect thereto.
(c) Subject to the liability limits set forth in this Agreement (including this Section 10.6), with respect to any Third-Party Claim relating to a Special Indemnity Matter for which the Shareholders are liable, the Shareholders shall be responsible for any and all such Losses arising under such Thirty Party Claim, which Losses may include consequential, indirect, special, or exemplary damages (including loss of profits or obtain paymentdiminution in value); provided, reimbursementhowever, restitution that with respect to any Direct Claim relating to a Special Indemnity Matter for which the Shareholders are liable, the Shareholders shall only be responsible for direct damages to the Company and shall not be liable or indemnity responsible for any consequential, indirect, special, or exemplary damages (including loss of profits or diminution in respect value), nor shall “multiple of profits” or “multiple of cash flow” or a similar valuation methodology be used in calculating the amount of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04Purchaser Losses.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (ExamWorks Group, Inc.)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum Buyer Indemnified Parties shall not be entitled to indemnification for Buyer Losses pursuant to Section 8.2(a) unless and until the aggregate amount of such Buyer Losses that exceeds $250,000, in which event the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of may only claim indemnification for such Buyer Losses that exceed $250,000; provided, however, that the Buyer Indemnified Parties are entitled foregoing limitation shall not apply to recover from Seller pursuant to any breach of any Core Representation, the S.P.A.R.K. Representation or the representations and warranties set forth in Section 11.01(a) exceed the total purchase price paid to Seller4.25 (Brokers, Finders and Investment Bankers).
(b) Notwithstanding anything to the contrary contained in this Article XIset forth herein, (i) the maximum aggregate liability of Seller and Parent for Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) Losses with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a)8.2(a) shall be 35% of the Purchase Price; provided, however, that the foregoing limitation shall not apply to any breach of any Core Representation, which shall be limited to the Purchase Price. In addition, notwithstanding anything to the contrary set forth herein, the maximum aggregate liability of Seller and Parent for Buyer Losses with respect to all Buyer Indemnified Parties (without duplicationclaims for indemnification pursuant to Section 8.2(a) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess for breach of the Repurchase Threshold or the General Threshold, as applicable, S.P.A.R.K. Representation shall be payable by Seller pursuant to a claim for indemnification$3,000,000.
(c) If any Notwithstanding anything to the contrary set forth herein, the maximum aggregate liability of Parent for Buyer Losses with respect to claims for indemnification (i) pursuant to Section 8.2(a) or (ii) pursuant to Sections 8.2(b) through (e) for any breach, non-performance, action or omission by Seller or any of its predecessors shall be the Purchase Price. For the avoidance of doubt, this clause (c) shall in no event limit any liability of Seller under this Article VIII or limit any liability of Parent under this Article VIII for Buyer Losses sustained with respect to claims for indemnification pursuant to Sections 8.2(b) through (e) for any breach, non-fullfillment, action or omission by Parent (as opposed to Seller) or any of its predecessors (other than Seller, to the extent, if any, Seller is deemed a predecessor of Parent for any reason).
(d) The amount for which any Indemnifying Party shall be liable under this Article VIII to an Indemnified Party shall be net of (i) any insurance proceeds received by an Indemnified Party are covered by an under insurance policypolicies relating to such Damages (provided, or an indemnificationhowever, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), that the Indemnified Party shall use commercially reasonable efforts to collect seek a claim or suit for any such proceeds to which it may be entitled under such insurance proceeds or indemnity, contribution, or similar paymentspolicies); provided, however, that no Indemnified Party shall be required and (ii) any net Tax benefit available to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries as a result of the Damages and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to made by the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimIndemnified Party.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Asset Purchase Agreement (United Western Bancorp Inc)
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, but subject to the remainder of this Article 9, the Sellers’ obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows:
(a) The maximum amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Sellerfraud and except in the case of any claim in respect of a Fundamental Representation or IP Representation, in no event will the aggregate amount of Buyer Losses that indemnity shall be payable pursuant to Section 9.1(a)(i) unless and until the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed shall have suffered Buyer Losses in excess of [***] in the total purchase price paid to Seller.
aggregate (b) Notwithstanding anything to the contrary contained “Threshold Amount”), and in this Article XI, (i) which case the Buyer Indemnified Parties shall be entitled to recover the full amount of such Threshold Amount of Buyer Losses;
(b) in no event shall (i) the maximum aggregate indemnification amount required to be paid by the Sellers pursuant to Section 11.01(a9.1(a)(i) (except in the case of fraud and with respect to breaches or inaccuracies of Fundamental Representations or IP Representations pursuant to Section 9.1(a)(i)) exceed the amount of the Indemnity Escrow Funds (the “Cap”), (ii) the maximum aggregate indemnification amount required to be paid by the Sellers pursuant to Section 9.1(a)(i) (except in the case of fraud) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation breaches or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) inaccuracies of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) IP Representations exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); [***] and (iiiii) the maximum aggregate amount for which Sellers will be liable under this Agreement (except in the case of fraud) with respect to all other claims for indemnification pursuant to Section 11.01(amatters exceed the amount of the Purchase Price (including the Indemnity Escrow Amount), the aggregate Buyer Losses or with respect to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”)any particular Seller’s breach or inaccuracy, whereupon only such amounts in excess Seller’s Pro Rata Percentage of the Repurchase Threshold or Purchase Price (including such Seller’s Pro Rata Percentage of the General ThresholdIndemnity Escrow Amount) (such amounts, as applicable, the “Indemnification Cap”); provided that claims for fraud shall not be payable limited in any way, except that in the case of any claim of fraud of any Seller, the Buyer Indemnified Party may seek uncapped recovery against such Seller only, and in the case of fraud by Seller pursuant the Company, the Buyer Indemnified Party may seek recovery only against all Sellers other than Best Buy in accordance with each such Seller’s Pro Rata Percentage adjusted to a redistribute the Pro Rata Percentage of Best Buy among the other Sellers (such that, for the avoidance of doubt, the Buyer Indemnified Party is entitled to recover the full amount of any such claim for indemnification.from the Sellers other than Best Buy);
(c) If any (i) the liability of each Seller with respect to Buyer Losses arising under Section 9.1(a) shall be several, and not joint, based on such Seller’s relative Pro Rata Percentage and (ii) no Seller shall have any liability for Buyer Losses arising under Section 9.1(b) except to the extent such Seller has made the representation, warranty or certification in Article 4 or any applicable certificate or made the covenant, agreement or undertaking in this Agreement or any applicable certificate, under which such Buyer Losses arise, and in the event that any representation, warranty, covenant or agreement of a particular Seller is breached in Article 4 or the applicable certificate, only the breaching Seller shall be liable to Buyer for Losses sustained by an Indemnified Party are covered by an insurance policyresulting from such breach;
(d) notwithstanding anything set forth herein to the contrary, or an indemnificationbut subject to the provisions in Section 9.4(c), contribution, or similar any indemnification obligation of another Person a Seller under this Agreement shall be satisfied by each Seller in accordance with such Seller’s Pro Rata Percentage of Buyer Losses;
(other than an Affiliate e) for purposes of such Indemnified computing the aggregate amount of indemnifiable claims against any Indemnifying Party), the amount of each claim for Losses by a Buyer Indemnified Party shall use commercially reasonable efforts be deemed to collect be an amount equal to, and any payments by the Indemnifying Party shall be limited to, the amount of such Losses that remain after deducting therefrom any Third Party insurance proceeds or actually recovered from any Third Party with respect thereto and any indemnity, contributioncontributions or other similar payment actually recovered from any Third Party with respect thereto;
(f) the amount of indemnity payable pursuant to Section 9.1 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is included as a specifically identified Current Liability in the final statement of Closing Working Capital;
(g) except in the case of fraud, or similar payments; provided, however, that no Indemnified Indemnifying Party shall be required to institute indemnify any legal proceeding against any third Person. The amount of any Buyer Losses Person for punitive, special or Seller Losses subject exemplary damages, except to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have the extent actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries paid in connection with the facts giving rise to the right of indemnification. If a Third-Party Claim;
(h) any Buyer Indemnified Party actually receives that becomes aware of a Loss for which it seeks indemnification under this Article 9 shall act in a commercially reasonable manner to mitigate such insurance proceeds or indemnity, contribution, or similar payments after Loss in accordance with applicable Law;
(i) in any case where a Buyer Indemnified Party recovers from any Third Party any amount in respect of a matter with respect to which the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicableSellers have previously indemnified a Buyer Indemnified Party pursuant to this Agreement, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled promptly pay over to recover damages or obtain payment, reimbursement, restitution or indemnity in respect the Sellers’ Representative (on behalf of the Sellers) the amount so recovered (net of any one Buyer Loss or related group deductibles, costs of Buyer Losses if recovery has already been obtained pursuant and increase in premium payments); and
(j) any indemnity payment under this Agreement shall be treated as an adjustment to Section 2.04the Purchase Price for U.S. federal income Tax purposes.
Appears in 1 contract
Samples: Securities Purchase Agreement (Logitech International Sa)
Liability Limits. (a) The Seller shall not have any indemnification obligations for Purchaser Losses with respect to claims made pursuant to Section 7.1(a) or Section 7.1(b) in respect to each individual item, or group of items arising out of the same event unless the aggregate amount of all such Purchaser Losses exceed Fifty Thousand Dollars ($50,000), and once such amount is exceeded Purchaser may recover all Purchaser Losses, including the initial Fifty Thousand Dollars ($50,000) of Purchaser Losses, and the total aggregate liability of the Seller for Purchaser Losses with respect to any claims made pursuant to Section 7.1(a) or Section 7.1(b) shall be limited to the Cap Amount. Notwithstanding the foregoing, the limitations set forth in this Section 7.5(a) shall not apply to any Purchaser Losses arising out of or related to (i) fraud, intentional misrepresentation or intentional breach, (ii) claims made pursuant to Section 7.1(c), Section 7.1(d) or Section 7.1(e), or (ii) a breach of any Fundamental Representation, and the Seller shall be liable for all Purchaser Losses with respect thereto; provided, however, the total aggregate liability of the Seller for such Purchaser Losses shall be limited to the Aggregate Cap Amount. All payments made by the Seller for Purchaser Losses with respect to claims made pursuant to Section 7.1(a) or Section 7.1(b) under this Agreement shall be made exclusively by reduction, forfeiture or return, as the case may be, of the Closing Shares and/or any shares of Parent Common Stock paid or payable to the Seller in connection with any Earnout Payment and by reduction of the amount payable to the Seller under any Note, in each case in proportion to the amounts payable pursuant to the Closing Shares and/or any shares of Parent Common Stock actually paid to the Seller in connection with any Earnout Payment, on the one hand, and the amount payable to the Seller under any Note, on the other hand. The set-off against the Closing Shares and/or shares of Parent Common Stock and against the amounts payable to the Seller under any Note as provided for in the immediately preceding sentence shall constitute the Purchaser’s sole and exclusive remedy against the Seller under this Agreement and pursuant to this Section 7 with respect to claims made pursuant to Section 7.1(a) or Section 7.1(b). If any such set-off is made, the value assigned to the Closing Shares or other shares of Parent Common Stock, as the case may be, shall be the average per share closing price of Parent Common Stock as reported in The Wall Street Journal for each of the thirty (30) consecutive trading days ending with the third trading day immediately preceding the date such Closing Shares and/or shares of Parent Common Stock are used to set-off any amount or right it may be entitled to pursuant to this Section 7.
(b) The total aggregate liability of the Purchaser for Seller Losses with respect to any claims made pursuant to Section 7.2 shall be limited to the Cap Amount. Notwithstanding the foregoing, the limitations set forth in this Section 7.5(b) shall not apply to any Seller Losses arising out of or related to fraud, intentional misrepresentation or intentional breach.
(c) Notwithstanding the foregoing or anything to the contrary set forth herein:
(a) The maximum in this Section 7 or otherwise in this Agreement, the Purchaser hereby acknowledges and agrees that no stockholder of the Seller shall be liable for, and neither the Purchaser, the Parent nor any of their Affiliates shall seek from any stockholder of the Seller, an amount of Buyer Purchaser Losses greater than such stockholders’ pro rata share of any Purchaser Losses that exceed the Buyer Indemnified Parties are entitled to recover Cap Amount and, irrespective of the foregoing, no stockholder of the Seller shall be liable for, and neither the Purchaser, the Parent nor any of their Affiliates shall seek from any stockholder of the Seller, under any circumstances whatsoever, any Purchaser Losses that exceed the portion of the Purchase Price actually received by such stockholder in connection with this Agreement and the consummation of the transactions contemplated hereby. All payments of any Purchaser Losses made by any stockholder of the Seller pursuant to Section 11.01(ashall be made in the same form of consideration actually received by such stockholder and in the same proportions as actually received by such stockholder; provided that, (i) (other than as a result of breaches if any stockholder of Seller Fundamental Representationssells any shares of Parent Common Stock held by such stockholder for cash and (ii) all of the other shares of Parent Common Stock held by such stockholder have been used by such stockholder to pay for Purchaser Losses, breaches the remaining payments of any Purchaser Losses made by such stockholder, if any, shall be made in cash and by forfeiture of the amount actually paid to the stockholder under any Note in proportion to the amounts actually paid to the stockholder in shares of Parent Common Stock, on the one hand, and actually paid to the stockholder under any Note, on the other hand; and, provided further, that the amount of cash that shall be payable by such stockholder in accordance with this Section 7.5(c) with respect to the shares of Parent Common Stock sold by such stockholder shall not exceed the lesser of (X) the value of such shares of Parent Common Stock as of the date set forth at the end of Section 4.15 7.5(a), or (Mortgage Business ComplianceY) the amount of cash actually received by such stockholder in connection with such stockholder’s sale(s) of such shares of Parent Common Stock (i.e., net of any taxes, fees or breaches resulting from fraudulent or intentional misrepresentations other costs related to such sale(s)). For purposes of this Agreement, a stockholder’s “pro rata share” shall equal the percentage determined by Seller) shall not exceeddividing the portion of the Purchase Price actually received by such stockholder by the total Purchase Price, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation actually received by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) all of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount stockholders of the Repurchase Reserve as of the Closing Date Company (the “Repurchase Threshold”including all Earnout Payments); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled If the Seller distributes any portion of the Purchase Price to recover damages or obtain paymentany of its stockholders (any such distribution, reimbursementin each case, restitution or indemnity a “ Distribution”), the Seller shall, within ten (10) days following each Distribution, send written notice to the Purchaser setting forth the details of such Distribution, including the identity of the stockholder, the amount of the Distribution and the form of consideration distributed to the stockholder in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04connection with the Distribution.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum Purchaser Indemnified Parties may not make a claim for indemnification under Section 10.1 for Purchaser Losses unless and until the aggregate amount of Buyer Purchaser Losses that for which the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) seek indemnification under this ARTICLE X (other than as a result of breaches of Seller Fundamental Representationsexcluding, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Sellerbreaches of the [****], the [****] portion of such Purchaser Losses for which the Equity Holders are responsible in accordance with Section 10.5(b)) exceeds [****] (the “Deductible”), in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XIwhich case, (i) the Buyer such Purchaser Indemnified Parties shall be entitled to indemnification pursuant for all Purchaser Losses in excess of (but not including) such amounts. Notwithstanding the foregoing, in no event shall the Deductible apply to Section 11.01(a(i) any claims with respect to breaches of Fundamental Representations and Warranties or the [****], (ii) [****], (iii) any claim claims for fraud or intentional misrepresentation or claims involving the filing of formal charges for criminal misconduct, or (iv) for avoidance of doubt, any indemnification pursuant to claims under Section 11.01(a6.15 or Sections 10.1(b-f).
(b) with respect Notwithstanding any other provision hereof to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent thatcontrary: (i) with respect to any claim claims by the Purchaser Indemnified Parties for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) Purchaser Losses for breaches of the Disclosure Schedule, [****] shall be borne [****] by the Purchaser and [****] by the Equity Holders until the aggregate Buyer amount of Purchaser Losses to all Buyer caused by any breaches of the [****] (excluding the [****] portion for which the Equity Holders are responsible), when aggregated with any other Purchaser Losses for which the Purchaser Indemnified Parties are entitled to seek indemnification under ARTICLE X (without duplication) except as set forth in the following clause (ii)), exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”)Deductible; and (ii) with respect to all other claims for indemnification the maximum aggregate amount of Damages that may be collected pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties [****] (without duplicationgiving effect to the Deductible) exceed $75,000 shall be [****] (the “General ThresholdSubcap”), whereupon only it being acknowledged and agreed that no such amounts indemnification claims subject to the Subcap under this Section 10.5(b)(ii) shall apply toward the Deductible. For the avoidance of doubt, following the Purchaser Losses in excess respect of [****] exceeding the Repurchase Threshold or Subcap and the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer aggregate Purchaser Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party)exceeding the Deductible, the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party Purchaser shall be entitled to recover damages or obtain paymentseek any additional Damages that may be incurred in relation to the [****], reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.this ARTICLE X.
Appears in 1 contract
Samples: Agreement and Plan of Merger (ICF International, Inc.)
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Purchaser Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to not make a claim against any claim Seller for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only ifunder this Article IX for Purchaser Losses unless and until, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date such Purchaser Losses exceeds $450,000 (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General ThresholdPurchaser Basket”), whereupon only such amounts in which event the Purchaser Indemnified Parties may claim indemnification for all Purchaser Losses in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments$450,000; provided, however, that no Indemnified Party Purchaser Losses related to Surviving Obligations shall not be subject to the Purchaser Basket nor shall they be included in calculating the Purchaser Basket. The total aggregate amount of the liability of Holdco and the Sellers for Purchaser Losses shall be required limited to institute any legal proceeding against any third Person$11,000,000 (the “Purchaser Cap”); provided, however, that Purchaser Losses arising from Surviving Obligations shall not be subject to the Purchaser Cap. Notwithstanding anything to the contrary set forth herein, in no event shall the aggregate liability of the Sellers and Holdco for indemnification pursuant to this Article IX exceed the amount equal to the Maximum Cap.
(b) The amount of any Buyer Losses or Seller Losses subject Purchaser Indemnified Parties shall not be entitled to indemnification under this Article IX for Purchaser Losses to the extent such Purchaser Losses were (i) reflected as a liability on the Final Working Capital Schedule or (ii) included on the Closing Date Expense Statement or the Closing Date Indebtedness Statement and, with respect to the foregoing clause (ii), were paid at Closing.
(c) Any indemnification obligation of the Sellers pursuant to this Article IX shall be satisfied first from the Escrow Fund, and if the Escrow Fund is insufficient, at the sole discretion of the Purchaser, (a) by Holdco and/or (b) by each of the Sellers on a several and not joint basis; provided that:
(i) each Non-Individual Seller’s liability for any Purchaser Loss shall not exceed such Non-Individual Seller’s Seller Percentage of such Purchaser Loss, and in the event a Non-Individual Seller indemnifies a Purchaser Indemnified Party for a Purchaser Loss, such indemnification payment shall, with respect to such Purchaser Loss, reduce, dollar-for-dollar, the indemnification limits under Section 11.01 9.5(c)(ii) or Section 11.029.5(c)(iii), as applicable, of the Individual Seller to which such Non-Individual Seller is a Related Party;
(ii) each Individual Seller’s liability for any Purchaser Loss shall be determined net not exceed such Individual Seller’s Indemnification Percentage of such Purchaser Loss, and in the event that an Individual Seller indemnifies a Purchaser Indemnified Party in an amount equal to such Individual Seller’s Indemnification Percentage of such Purchaser Loss, the Purchaser Indemnified Party may not seek indemnification from such Individual Seller’s Related Parties as a result of such Purchaser Loss; and
(iii) each Individual Seller is responsible for 100% of any third-party insurance Purchaser Loss arising under Section 9.1(a) with respect to a breach by such Individual Seller or indemnitysuch Individual Seller’s Related Party of any representation in Sections 5.1, contribution 5.2, 5.3, 5.4, 5.5, 5.6, or similar proceeds that have actually been recovered in cash by 5.7. Notwithstanding the Indemnified Party after deducting therefrom all deductible amountsforegoing, increases in premiums specifically tied the Purchaser may, at its sole discretion, set off any obligation of the Sellers for Purchaser Losses pursuant to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise this Article IX from any Earnout Amount payable to Holdco pursuant to the right Earnout Agreement. In no event shall the Purchaser be entitled to use any of indemnification. If the funds held in the Escrow Fund to satisfy any of its indemnification obligations to any Seller Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimParty.
(d) The amount of Purchaser Losses otherwise payable to the Purchaser Indemnified Parties pursuant to this Article IX shall be net of any insurance proceeds actually received by the Purchaser Indemnified Parties with respect to such Purchaser Losses under insurance policies maintained by the Company prior to the date hereof.
(e) No Buyer Purchaser Loss or Seller Loss shall include punitive damages (unless required to be paid by the Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04a Third Party Claim).
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that the in this Agreement, Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in make a claim against the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will Seller for indemnification under this Agreement for Buyer Losses unless and until the aggregate amount of such Buyer Losses that exceeds Seventy-Five Thousand Dollars ($75,000) (the “Threshold”) in which event Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Sellermay claim indemnification for all Buyer Losses, in excess of Thirty-Five Thousand Dollars ($35,000).
(b) Notwithstanding anything to the contrary contained in set forth herein, the maximum aggregate liability of the Seller for indemnification or any other claim under this Article XI, Agreement shall not exceed (i) One Million Dollars ($1,000,000) or (ii) Two Million Five Hundred Thousand Dollars ($2,500,000) in the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) case of claims against Seller with respect to the breach recapture of a representation any payment made under the FRA Program, or warrantyGovernment Programs and Blue Cross cost reports filed by Seller, other than a or to be filed, for or relating to periods prior to Closing for services rendered by Seller Fundamental Representation, only if, and then only up to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase ThresholdCap”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses In no event shall either party be liable hereunder or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise transactions contemplated hereby for any consequential, special, exemplary or punitive damages. Further notwithstanding anything herein to the right of indemnification. If contrary, neither the Threshold nor the Cap shall apply to any Indemnified Party actually receives such insurance proceeds Party’s claim for indemnity against Seller or indemnity, contribution, Buyer arising from any common law fraud by Seller or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimBuyer.
(d) No Buyer Indemnified Party shall For purposes of determining Losses under this Article XI, all qualifications as to materiality in any representation and warranty or any covenant will be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04disregarded.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sunlink Health Systems Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The liability of the Seller Parties for Purchaser Losses with respect to any claims made pursuant to Section 8.1(a) shall be limited to 50% of such Purchaser Losses; provided, however, that the liability of the Seller Parties for Purchaser Losses arising out of fraud or the Surviving Representations shall not be subject to such limitation.
(b) In addition to the limitation set forth in Section 8.5(a) above, the total aggregate amount of the liability of the Seller Parties for Purchaser Losses with respect to any claims made pursuant to Section 8.1(a) shall be limited to THREE HUNDRED THOUSAND THREE HUNDRED FIFTY DOLLARS ($300,350) (the “Cap Amount”); provided, however, that the liability of the Seller Parties for Purchaser Losses arising out of fraud or the Surviving Representations shall not be subject to the Cap Amount (however, in such event, the maximum amount of Buyer Purchaser Losses that the Buyer Purchaser Indemnified Parties are shall be entitled to recover from each Seller pursuant to Section 11.01(a) Party under this Article VIII (other than as a result including Purchaser Losses arising out of breaches of Seller Fundamental the Surviving Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceedexceed the aggregate portion of the Purchase Price actually received by such Seller Party and its Affiliates).
(c) Any funds remaining in the Indemnification Escrow Fund on the date that is fifteen (15) months after the Closing Date shall be released to the Sellers; provided, however, that the Escrow Agent shall continue to hold any funds that are the subject of asserted but unresolved claims pursuant to the terms of the Escrow Agreement.
(d) The Purchaser shall obtain an insurance policy in respect of breaches or inaccuracies of the representations and warranties made in Article II hereof (such insurance policy, the “R&W Insurance Policy”). The Parties intend for the R&W Insurance Policy to be the sole and exclusive remedy in respect of Purchaser Losses for indemnification under Section 8.1(a) other than the Indemnification Escrow Fund and that the Seller Parties shall not have aggregate liability in respect of Purchaser Losses under Section 8.1(a) in excess of the Cap Amount, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoingeach case, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount Purchaser Losses arising out of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold fraud or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party Surviving Representations. The Purchaser shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, ensure that the R&W Insurance Policy expressly provides that insurer thereunder shall have no Indemnified Party shall be required subrogation rights to institute pursue any legal proceeding claim against any third Person. The amount of any Buyer Losses or the Seller Losses subject Parties other than with respect to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimfraud.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Securities Purchase Agreement (Repay Holdings Corp)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that the Buyer PRGX Indemnified Parties are entitled shall have no right to recover from Seller pursuant to Section 11.01(aindemnification under Sections 7.1(a) and (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Complianced) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will for PRGX Losses unless and until the aggregate amount of Buyer such PRGX Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date $40,000 (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General ThresholdCompany Basket”), whereupon in which event the PRGX Indemnified Parties may only such amounts claim indemnification for that amount by which the PRGX Losses exceed in excess of aggregate the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar paymentsCompany Basket; provided, however, that the Surviving Representations of the Companies and Shareholders shall not be subject to the Company Basket. The Company Indemnified Parties shall have no right to indemnification under Section 7.2(a) for Company Losses unless and until the aggregate amount of such Company Losses exceed $40,000 (the “PRGX Basket”), in which event the Company Indemnified Parties may only claim indemnification for that amount by which the Company Losses exceed in aggregate the PRGX Basket; provided, however, that the Surviving Representations of the PRGX Parties shall not be subject to the PRGX Basket.
(b) The total aggregate amount of the liability of the Companies and the Shareholders for PRGX Losses with respect to any indemnification claims made pursuant to Section 7.1(a) and (d) shall be limited to $3,000,000; provided, however, that the total aggregate amount of the liability of the Companies and the Shareholders for PRGX Losses arising out of fraud or the Surviving Representations shall not be subject to any such limit. The total aggregate amount of the liability of the PRGX Parties for Company Losses with respect to any indemnification claims made pursuant to Section 7.2(a) shall be limited to $3,000,000; provided, however, that the total aggregate amount of the liability of the PRGX Parties for Company Losses arising out of fraud or the Surviving Representations shall not be subject to any such limit.
(c) No Party will be entitled to be indemnified with respect to any claim to the extent that the matter that is the subject of the claim was taken into account in determining the Final Working Capital Schedule or that was raised and resolved by written agreement of the Parties or though the dispute resolution procedures set forth in Section 2.3. No Party will be obligated to indemnify any other Party with respect to any claim that relates to or PRGX Losses or Company Losses, as applicable, resulting from the passing of or change in any legal requirement or any accounting policy, principle or practice after the Closing Date.
(d) The PRGX Indemnified Parties will not be entitled to indemnification under this Article 7 for PRGX Losses caused or aggravated by the operation of the Target Business following the Closing Date or caused or aggravated by acts or omissions by the PRGX Indemnified Parties or their Affiliates following the Closing Date, in any case, that are unreasonable, grossly negligent or in violation of this Agreement (it being understood that compliance with applicable law shall in no event be deemed to be unreasonable, grossly negligent or in violation of this Agreement).
(e) No Party shall be required to institute indemnify the other Parties with respect to any legal proceeding against special, punitive, exemplary or consequential damages other than with respect any such damages that are successfully recovered by a third Person. party.
(f) The amount of any Buyer Losses or Seller Losses subject to claim for which indemnification is provided under Section 11.01 or Section 11.02, as applicable, this Article 7 shall be determined net of any third-party (i) Tax benefits actually available to an Indemnified Party with respect to such claim or (ii) amounts actually recovered by an Indemnified Party from third parties, including amounts collected under insurance policies, that reduce the overall impact of such claim.
(g) To the extent that any breach of a representation, warranty, covenant or indemnity, contribution or similar proceeds that have actually been recovered in cash agreement by the Indemnified Party after deducting therefrom all deductible amountsShareholders, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contributionon one hand, or similar payments after the settlement PRGX Parties, on the other hand, is capable of any indemnification claim under Section 11.01 or Section 11.02cure, as applicablethe non-breaching Party will afford the breaching Party a reasonably opportunity (which will not be less than 10 days) to cure such breach and provide reasonable assistance (including access to buildings, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnityoffice, contributionbook and records, or similar paymentsproperties, up to the amount actually received assets and employees) in connection with such indemnification claimcure.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Sellers shall only be liable for Buyer Losses arising under this Agreement solely to the extent that the any such Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not Losses exceed, in the aggregate, an amount equal to U.S. $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date 30,000 (the “Repurchase Threshold”"Seller Basket Amount"); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party Buyer Losses arising under or pursuant to paragraph 7.2(a)(i) of this Agreement shall not be subject to the Seller Basket Amount to the extent that they relate to Sellers' breach of their representations and warranties in Section 2.4 or 3.3 of the Agreement.
(b) Buyer shall only be liable for Seller Losses arising under this Agreement solely to the extent that any such Seller Losses exceed, in the aggregate, U.S. $30,000 (the "Buyer Basket Amount").
(c) The indemnification obligations of each Management Seller under this Agreement shall not exceed in the aggregate an amount (the "General Seller's Cap Amount") equal to the sum of (i) the value, as of the Closing, of the Harbinger Shares issued to such Seller pursuant to this Agreement plus (ii) such Management Seller's Allocation Percentage (as defined in Section 7.2(a) hereof) multiplied by U.S. $310,350; provided, however, that Buyer Losses arising under or pursuant to Section 7.2(a)(i) to the extent that they relate to Management Seller's breach of its representations and warranties in Section 2.4 of this Agreement or arising from Management Seller's fraudulent conduct shall not be subject to the General Seller's Cap Amount and there shall be required no limitation on the indemnification obligations of the Management Seller with respect to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimarising thereunder.
(d) No Buyer's indemnification obligations under this Agreement shall not exceed in the aggregate an amount equal to the value, as of the Closing, of the Harbinger Shares issued to the Sellers pursuant to this Agreement (the "Buyer Indemnified Party Cap Amount").
(e) Once Buyer Losses exceed the Seller Basket Amount or Seller Losses exceed the Buyer Basket Amount, as the case may be, a breach for which a party is entitled to seek indemnification hereunder shall be entitled deemed to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one occur upon the initial Buyer Loss or series of related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04or Seller Loss or series of related Seller losses.
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Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Seller and Shareholder shall only be liable for Purchaser Losses arising hereunder solely to the extent that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not any such Purchaser Losses exceed, in the aggregate, an amount equal to One Hundred Seventy-Five Thousand Dollars ($1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a175,000.00) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”"Seller Basket Amount"); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party Purchaser Losses arising under or pursuant to Section 8.1(d) of this Agreement shall not be required subject to institute any legal proceeding against any third Person. The the Seller Basket Amount, nor shall the amount of any Buyer such Purchaser Losses or be included with other Purchaser Losses in determining whether such Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually Basket Amount has been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimreached.
(db) No Buyer Indemnified Party The indemnification obligations of the Seller and Shareholder hereunder shall be entitled to recover damages not exceed in the aggregate Five Million Dollars ($5,000,000) (the "Seller's Cap Amount"); provided, however, that Purchaser Losses arising under or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.048.1(d) of this Agreement shall not be subject to the Seller's Cap Amount and there shall be no limitation on the indemnification obligations of the Seller with respect to Purchaser Losses arising under or pursuant to such provisions.
(c) For purposes of the indemnification obligations of the Seller under this Article 8 and the applicable representations and warranties of the Seller and Shareholder set forth in Article 3 hereof (but not for purposes of determining the satisfaction of the conditions set forth in Section 6.2(a) and (b) hereof), a Purchaser Loss or series of related Purchaser Losses shall be deemed to have a material adverse effect on the assets, liabilities, results of operations, financial condition, business or prospects of the Business, if such Purchaser Loss or series of related Purchaser Losses exceeds Five Thousand Dollars ($5,000); provided, however, that for purposes of determining the satisfaction of the Seller Basket Amount under Section 8.5(a), all representations, warranties, covenants, agreements or undertakings referred to in Section 8.1(c) and (d) hereof shall be read so as to exclude therefrom the term "material" (or similar words of like import) and the effect thereof under this Article 8.
Appears in 1 contract
Samples: Asset Purchase Agreement (Healthcare Recoveries Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum Purchaser Indemnified Parties shall not make a claim for indemnification under Section 7.1(a) for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that exceeds U.S.$100,000.00, in which event the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, may claim indemnification for all Purchaser Losses over U.S.$50,000.00 in the aggregate, an amount equal and the total aggregate liability for Purchaser Losses with respect to $1,000,000any claims made pursuant to Section 7.1(a) shall be limited to (i) U.S.$12,000,000.00 for claims arising from or related to Seller’s breach of Section 3.1 (Organization; Standing and Power; Subsidiaries), Section 3.3 (Authority; Binding Nature of Agreement), Section 3.7 (Title to and Sufficiency of the Assets), Section 3.10 (Intellectual Property), Section 3.12 (Compliance with Law; Governmental Authorizations) and Section 3.13 (Tax Matters), and (ii) U.S.$3,000,000.00 for all other claims. Without limiting Notwithstanding the foregoing, except the limitations set forth in the case this Section 7.6(a) shall not apply to any Purchaser Losses arising out of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled or related to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Sellerfraud or willful misconduct.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer The Seller Indemnified Parties shall be entitled to not make a claim for indemnification pursuant to under Section 11.01(a7.2(a) for Seller Losses unless and until the aggregate amount of such Seller Losses exceeds U.S.$100,000.00, in which event the Seller Indemnified Parties may claim indemnification for all Seller Losses over U.S.$50,000.00 in the aggregate, and the total aggregate liability for Seller Losses with respect to any claim for indemnification claims made pursuant to Section 11.01(a7.2(a) with respect shall be limited to U.S.$3,000,000.00. Notwithstanding the breach of a representation or warrantyforegoing, other than a Seller Fundamental Representation, only if, and then only to the extent that: (ilimitations set forth in this Section 7.6(b) with respect shall not apply to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation arising out of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04fraud or willful misconduct.
Appears in 1 contract
Samples: Asset Purchase Agreement (Digital Domain Media Group, Inc.)
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows:
(a) The maximum amount no amounts of Buyer Losses that indemnity shall be payable pursuant to Section 9.2(a) unless and until the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(ashall have suffered Buyer Losses in excess of $468,500 (the “Deductible Amount”) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the which case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, recover only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar paymentsDeductible Amount; provided, however, that Buyer Losses arising under Section 9.2(a) to the extent based on (i) Fundamental Representations or (ii) Fraud shall not, in each case, be subject to the Deductible Amount;
(b) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(a) exceed the Cap Amount; provided, that the limitation set forth in this Section 9.6(b) shall not apply to (i) Fraud (it being understood that there shall be no limitation on the liability of Indemnifying Parties directly or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or shall be required to institute any legal proceeding against any third Person. The amount of any reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.aggregated claims;
(d) No in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover damages any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or obtain payment, reimbursement, restitution or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of any one a matter with respect to which Seller has made indemnification payments to Buyer Loss or related group pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;
(j) the liability of Seller for Buyer Losses if recovery has already been obtained shall be considered in the aggregate and shall be determined on a cumulative basis so that all Buyer Losses incurred under Article IX shall be combined for purposes of determining limitations on liability, including the maximum liability amounts described above;
(k) in any claim for indemnification under this Agreement, no Party shall be required to indemnify any Person for punitive or exemplary damages, except to the extent such damages are payable pursuant to a Third-Party Claim;
(l) any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for U.S. federal income tax purposes; and
(m) for the avoidance of doubt, this Section 2.049.6 shall not apply to any liability for indemnification obligation arising under Section 7.2(f).
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum in this Agreement, the Purchaser Indemnified Parties shall not make a claim against the Sellers for indemnification under this Article XI for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that exceeds $500,000 (the Buyer “Threshold Amount”), in which event the Purchaser Indemnified Parties are entitled may recover only the amount of such Purchaser Losses in excess of the Threshold Amount; provided, however, that claims with respect to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of the Seller Fundamental Representations, breaches of the Seller Fundamental Obligations, Section 4.15 5.14 (Mortgage Business ComplianceTax Returns; Taxes), Section 5.22 (Transactions with Affiliates) or breaches resulting from fraudulent or intentional misrepresentations by Sellerand Section 7.13 (Tax Matters) shall not exceed, be subject to the limitations set forth in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to this Section 11.01(a) exceed the total purchase price paid to Seller11.5(a).
(b) Notwithstanding anything to the contrary contained set forth in this Agreement, the Seller Indemnified Parties shall not make a claim against Purchaser for indemnification under this Article XIXI for Seller Losses unless and until the aggregate amount of such Seller Losses exceeds the Threshold Amount, provided, however, that claims with respect to the Purchaser Fundamental Representations and the Purchaser Fundamental Obligations shall not be subject to the limitations set forth in this Section 11.5(b).
(c) The Sellers shall not be required to pay an aggregate amount in excess of $8,000,000 in respect of Purchaser Losses; provided, however, that claims with respect to the Seller Fundamental Representations, the Seller Fundamental Obligations, Section 5.14 (Tax Returns; Taxes), Section 5.22 (Transactions with Affiliates) and Section 7.13 (Tax Matters) shall not be subject to such limitation; provided, further, that in no event shall the Sellers be required to pay an aggregate amount in excess of the Purchase Price, as adjusted pursuant to this Agreement (the “Cap”), under this Article XI in respect of Purchaser Losses.
(d) Purchaser shall not be required to pay an aggregate amount in excess of $8,000,000 in respect of Seller Losses; provided, however, that claims with respect to the Purchaser Fundamental Representations and the Purchaser Fundamental Obligations shall not be subject to such limitation; provided, further, that in no event shall Purchaser be required to pay an aggregate amount in excess of the Cap under this Article XI in respect of Seller Losses.
(e) The amount which an Indemnifying Party is or may be required to pay to an Indemnified Party in respect of Purchaser Losses or Seller Losses, as applicable, for which indemnification is provided under this Agreement will be reduced by any amounts actually received (including amounts received under insurance policies) by or on behalf of the Indemnified Party from third parties, in respect of such Purchaser Losses or Seller Losses, as applicable, (such amounts are referred to herein as “Indemnity Reduction Amounts”). If any Indemnified Party receives any Indemnity Reduction Amounts in respect of an any claim for which indemnification is provided under this Agreement after the full amount of such claim has been paid by an Indemnifying Party or after an Indemnifying Party has made a partial payment of such claim and such Indemnity Reduction Amounts exceed the remaining unpaid balance of such claim, then the Indemnified Party will promptly remit to the Indemnifying Party an amount equal to the excess (if any) of (i) the Buyer Indemnified Parties amount theretofore paid by the Indemnifying Party in respect of such claim, less (ii) the amount of the indemnity payment that would have been due if such Indemnity Reduction Amounts in respect thereof had been received before the indemnity payment was made. An insurer or other third party who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof or have any subrogation rights with respect thereto. It is expressly understood and agreed that no insurer or any other third party shall be entitled to any benefit they would not be entitled to receive in the absence of the indemnification provisions by virtue of the indemnification provisions hereof. To mitigate the amount of Purchaser Losses or Seller Losses, as applicable, for which indemnification is provided under this Agreement, each Party will use commercially reasonable efforts to obtain any and all amounts recoverable under insurance policies which would reduce a claim for indemnification; provided, however, that, except as provided in Section 11.5(f), neither Purchaser nor the Sellers shall be required to first pursue such insurance policies prior to pursuing any of Purchaser’s or the Sellers’ respective other rights or remedies.
(f) In connection with any Purchaser Losses for which any Purchaser Indemnified Party is entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a11.1(h), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Purchaser Indemnified Party shall use commercially reasonable efforts to collect obtain any and all amounts recoverable under the Product Liabilities Policy or any replacement policy in respect thereof prior to seeking satisfaction of any such indemnification obligations directly from the Sellers, and no amount shall be recovered by a Purchaser Indemnified Party pursuant to Section 11.1(h) unless and until the earliest of (i) the date on which such Purchaser Indemnified Party has been denied insurance proceeds coverage under the Product Liabilities Policy or indemnityany replacement policy in respect thereof, contribution(ii) the date on which such Purchaser Indemnified Party has exhausted the applicable coverage amount for such Purchaser Losses under the Product Liabilities Policy or any replacement policy in respect thereof or (iii) the date that is six (6) months after which such Purchaser Indemnified Party initiates its claim for insurance coverage under the Product Liabilities Policy or any replacement policy in respect thereof, if such Purchaser Indemnified Party has theretofore used commercially reasonable efforts to obtain any and all amounts recoverable under the Product Liabilities Policy or similar paymentssuch replacement policy but has not as of such date obtained pursuant thereto the full amount to which such Purchaser Indemnified Party is entitled in respect of such claim, it being understood that any such Purchaser Indemnified Party shall be entitled to give the putative Indemnifying Party notice of such claim for indemnity pursuant to Section 11.1(h) at any time on or after it initiates a claim for insurance coverage under the Product Liabilities Policy or any replacement policy in respect thereof. Notwithstanding such denial, exhaustion or other failure to obtain coverage, the applicable Purchaser Indemnified Party shall be required to use commercially reasonable efforts to seek coverage under Product Liabilities Policy or any replacement policy in respect thereof and to seek recovery from the insurer thereunder in the event such coverage is reinstated. Any such recovery under Product Liabilities Policy or any replacement policy in respect thereof shall be treated in accordance with the provisions of Section 11.5(e) above.
(g) The amount of Purchaser Losses or Seller Losses, as applicable, for which indemnification is provided under this Agreement will be reduced (or subject to partial repayment) to take account of any permanent, net Tax benefit actually realized by the Indemnified Party in cash, cash equivalents or the reduction in any amount then payable, arising from the incurrence or payment of any such Purchaser Losses or Seller Losses, as applicable (determined (i) after taking into account any Tax detriment arising from the receipt of the indemnification payment hereunder and (ii) only taking into account the indemnification payments hereunder after any and all other items of income, gain, loss deduction or credit of the Indemnified Party, and any applicable Affiliates).
(h) Notwithstanding anything to the contrary set forth in Section 11.1, the Sellers will not have any obligation to indemnify any Purchaser Indemnified Party with respect to any matter if the Purchaser Losses arise from a change in the accounting or Tax policies or practices of the Company or its Subsidiaries after the Closing Date, unless such change was required to be made in order to comply with GAAP or applicable Tax Law, in each case, in effect as of the date of this Agreement.
(i) Notwithstanding anything to the contrary set forth in Section 11.1 or Section 11.2, no Party will be entitled to recovery under Section 11.1 or Section 11.2 for Purchaser Losses or Seller Losses, as applicable, to the extent speculative, remote or not reasonably foreseeable (it being understood that any Purchaser Losses or Seller Losses required to be paid by an Indemnified Party to a third party that is not an Affiliate of Guarantor shall be deemed reasonably foreseeable for purposes hereof), and in no event shall Purchaser Losses or Seller Losses, as applicable, include punitive or exemplary damages, except to the extent required to be paid to a third party that is not an Affiliate of Guarantor ; provided, however, that in no event shall any Purchaser Indemnified Party be entitled to recovery under Section 11.1 for Purchaser Losses (i) resulting from any claim against Guarantor by any one or more of its shareholders, in its or their capacity as such (including derivative claims brought by such shareholder(s) in the name of Guarantor), notwithstanding whether such claim is characterized as a third-party claim, or (ii) in respect of a diminution in the stock price of Guarantor (it being understood that neither (i) nor (ii) shall prohibit a Party from recovery under Section 11.1 for Purchaser Losses resulting from the underlying cause of, or the facts, circumstances or occurrences giving rise or contributing to, any such claim against, or diminution in the stock price of, Guarantor); provided, further, that if an Indemnifying Party shall not have been properly notified of a claim for indemnity under Section 11.1 prior to the one (1) year anniversary of the Closing Date, in no event shall any Purchaser Indemnified Party be entitled to recovery under Section 11.1 for Purchaser Losses in respect of such claim to the extent determined (or increased) based on any diminution in value based on any multiple of any financial measure (including earnings, sales or other benchmarks) that might have been used by Purchaser in its valuation of the Company and its Subsidiaries or the Business.
(j) The Sellers shall be jointly and severally liable for any Purchaser Losses up to the amount of the Indemnity Holdback and any Purchaser Indemnified Party shall initially seek satisfaction of any such joint and several indemnification obligations from the Indemnity Holdback. If the Indemnity Holdback has been released or exhausted, (i) the Sellers shall thereafter be required to institute jointly and severally liable for any legal proceeding against Purchaser Losses arising under Section 11.1(b), Section 11.1(d), Section 11.1(f), Section 11.1(g), Section 11.1(h), Section 11.1(i), Section 11.1(j), Section 11.1(k), Section 11.1(l), Section 11.1(m), Section 11.1(n) or Section 7.13 and (ii) each Seller shall thereafter be severally liable for any third Person. The Purchaser Losses arising under Section 11.1(a), Section 11.1(c) or Section 11.1(e), but in no event shall the aggregate amount of Purchaser Losses recoverable from any Buyer Seller by the Purchaser Indemnified Parties pursuant to this Article XI exceed the portion of the Purchase Price received by such Seller (including the portion of the Indemnity Holdback attributable to such Seller). In addition, in no event shall a Purchaser Indemnified Party be entitled to indemnification pursuant to Sections 11.1(l), 11.1(m), or 11.1(n) to the extent that such Purchaser Indemnified Party is indemnified for such amounts pursuant to Section 10.1 of any Minority Purchase Agreement.
(k) Any Purchaser Losses or Seller Losses subject for which any Purchaser Indemnified Party is entitled to indemnification under Section 11.01 or Section 11.02, as applicable, this Article XI shall be determined net without duplication of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash recovery by reason of the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses state of such recoveries in connection with the facts giving rise to the right such Purchaser Losses constituting a breach of indemnification. If any Indemnified Party actually receives such insurance proceeds more than one representation and warranty or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimcovenant.
(dl) No Buyer Indemnified Party The indemnification limitations set forth in Section 11.5 shall be entitled not apply to recover damages any claims arising out of or obtain paymentrelating to intentional breach, reimbursement, restitution fraud or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04willful misconduct.
Appears in 1 contract
Samples: LLC Interest Purchase Agreement (Vitamin Shoppe, Inc.)
Liability Limits. Notwithstanding anything to the contrary set ---------------- forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in make a claim against MSAI or the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will Seller for indemnification under Section 10.01(d) for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that exceeds One-Hundred Fifty Thousand Dollars ($150,000.00) (the Buyer "Purchaser Basket"), in ---------------- which event the Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed may claim indemnification for all Purchaser Losses, including the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed initial $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments150,000.00; provided, however, that no Indemnified Party (i) -------- ------- the Surviving Representations shall not be subject to the Purchaser Basket, and (ii) for purposes of calculating the Purchaser Basket, the dollar value of any breaches of any representation or warranty shall be required calculated without reference to institute any legal proceeding against any third Personmateriality or adverse effect qualifier or exception set forth in such representation or warranty. The total aggregate amount of the liability of the Company and the Seller for Purchaser Losses with respect any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained claims made pursuant to Section 2.0410.01(d) shall be limited to an amount equal to Four Million Fifty-Thousand Dollars ($4,050,000) (the "Purchaser Cap"): provided, however, ------------- -------- ------- that the total aggregate amount of the liability of the Company and the Seller for Purchaser Losses arising out of fraud, willful misconduct or a violation of applicable securities or other laws shall not be subject to any limits. In addition, the aggregate liability of Purchaser and Parent to all Seller Indemnified Parties for any Seller Losses associated with any breach or failure by Purchaser or Parent to perform under Section 6.12 of this Agreement, or arising from any inability of Seller to sell the Issued Securities in the public market, shall not exceed $500,000.
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that the Buyer , Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceedmake a claim against the Shareholder Parties for indemnification under this Article X for Purchaser Losses, in the aggregateand Shareholder Indemnified Parties shall not make a claim against Purchaser for indemnification under this Article X for Shareholder Losses, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will unless and until the aggregate amount of Buyer such Purchaser Losses that or Shareholder Losses, as the Buyer case may be, exceeds $750,000 (the “Basket”), in which event Purchaser Indemnified Parties are entitled may claim indemnification for Purchaser Losses, or Shareholder Indemnified Parties may claim indemnification for Shareholder Losses, as the case may be, for amounts in excess of the Basket; provided that indemnification claims for Purchaser Losses arising out of the Surviving Obligations or Surviving Representations shall not be subject to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to SellerBasket.
(b) Notwithstanding anything to the contrary contained in this Article XI, In no event shall:
(i) the Buyer amount paid by the Shareholder Parties in the aggregate for indemnification claims by Purchaser Indemnified Parties exceed the Escrow Amount (the “Cap”); provided that the amount paid by the Shareholder Parties for indemnification claims for Purchaser Losses arising out of the Surviving Obligations and Surviving Representations shall not be subject to the Cap, but instead shall be entitled limited to the amount of the Base Purchase Price plus the Real Property Purchase Price; and
(ii) the amount paid by the Purchaser in the aggregate for indemnification pursuant to claims by Shareholder Indemnified Parties exceed the Cap; provided that (1) the amount paid by the Purchaser for indemnification claims for Shareholder Losses arising under (y) Section 11.01(a10.2(a) with respect to any claim breach or inaccuracy of any representation or warranty in Section 5.1 (Organization), Section 5.2 (Authorization), and Section 5.3 (Absence of Restrictions and Conflicts) or (z) Sections 10.2(b) or 10.2(c) shall not be subject to the Cap, but instead shall be limited to the amount of the Base Purchase Price plus the Real Property Purchase Price and (2) the amount paid by the Purchaser for indemnification pursuant to claims for Shareholder Losses arising under Section 11.01(a10.2(d) with respect shall not be subject to the Cap, but instead shall be limited to $10,000,000.
(c) For purposes of Section 10.1, a breach of a representation or warranty contained in this Agreement or in any Purchaser Ancillary Document shall be deemed to exist either if such representation or warranty is actually inaccurate or breached as of the date such representation or warranty is made, or if such representation or warranty would have been breached or been inaccurate if such representation or warranty had not contained any limitation or qualification expressly as to materiality (whether or not quantified), or Material Adverse Effect, it being the intention of the Parties that the Purchaser Indemnified Parties shall be indemnified and held harmless from and against any and all Purchaser Losses suffered or incurred by any of them resulting from, arising out of, based upon or relating to the failure of any such representation, warranty, certificate, schedule, exhibit or other than a Seller Fundamental Representationagreement, only ifinstrument or document to be true, correct and then only complete in any respect, determined in each case without regard to any qualification as to materiality (whether or not quantified) or Material Adverse Effect set forth with respect thereto, but in all cases taking into account the disclosures and qualifications contained in the Schedules; provided, however, in no event shall any dollar threshold expressly set forth in the representations and warranties in Article IV be ignored for purposes of determining the accuracy of any representation or warranty
(d) Notwithstanding anything herein to the extent that: (icontrary, the amount paid by the Shareholder Parties for indemnification claims for Purchaser Losses arising under Section 10.2(a) with respect to any breach or inaccuracy of the representations and warranties contained in Section 4.6 (Real Property) shall be net of any amounts actually recovered by Purchaser from any warranty or indemnity existing on the date hereof from any builder or contractor with respect to any building or improvement on the Real Property; provided that (i) the recovery of or claim for indemnification attributable with respect to any warranty or indemnity shall not be a condition to the Company’s repurchase Shareholder Parties’ obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses and pursuant to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); this Article X and (ii) with respect nothing herein shall restrict or limit the rights of the Purchaser Indemnified Parties to all other bring claims for indemnification pursuant to Section 11.01(a), this Article X. Purchaser covenants and agrees that (y) if any defect requiring repair or replacement arises with respect to any building or improvement on the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold Real Property for which Purchaser has sought or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an may seek indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party Purchaser shall use commercially reasonable efforts to collect procure such insurance proceeds repair or indemnity, contributionreplacement, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of incurred in the same, pursuant to any warranty or indemnity from any builder or contractor with respect to such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party building or improvement and (z) if Purchaser actually receives payment with respect to any such insurance proceeds builder or indemnitycontractor warranty or indemnity for any such defect (any such being a “Warranted Defect”), contribution, or similar payments after the settlement of Purchaser shall pay to Shareholder an amount (without interest) equal to any indemnification claim under Section 11.01 or Section 11.02, as applicable, claims actually paid by Shareholder Parties with respect to such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimWarranted Defect.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Concurrent Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in make a claim against the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will Company for indemnification under this Section 9 for Concurrent Losses unless and until the aggregate amount of Buyer such Concurrent Losses that exceeds the Buyer U.S. $75,000 (the "CONCURRENT BASKET"), in which event the Concurrent Indemnified Parties are entitled may claim indemnification for all Concurrent Losses, including the initial U.S. $75,000; provided, however, the Surviving -------- ------- Obligations and the Surviving Representations shall not be subject to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to SellerConcurrent Basket.
(b) Notwithstanding anything to the contrary contained in set forth herein, the maximum aggregate liability of the Company under this Article XISection 9 for Concurrent Losses shall not exceed the Purchase Price (the "AGGREGATE LIABILITY CAP"); provided, (i) however, the Buyer Indemnified Parties Surviving Obligations and the -------- ------- Surviving Representations shall not be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect subject to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnificationAggregate Liability Cap.
(c) If any Buyer Losses or Seller Losses sustained by an No Indemnified Party otherwise entitled to indemnification under this Section 9 shall be indemnified pursuant to this Section 9 to the extent that a court of competent jurisdiction finally determines that such Indemnified Party's losses are covered caused by an insurance policy, the willful misconduct or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate gross negligence of such Indemnified Party), the .
(d) No Indemnifying Party will be required to indemnify any Indemnified Party shall use commercially reasonable efforts under this Section 9 for any Concurrent Losses or Company Losses (as the case may be) to collect the extent reimbursed by insurance payments that are directly attributable to such insurance proceeds or indemnity, contribution, or similar paymentsloss and are paid to such Indemnified Party prior to the expiration of the Claims Period with respect to such loss under this Section 9; provided, however, that no the Indemnified -------- ------- Party shall use reasonable efforts to obtain recovery under any insurance policy which was acquired by such Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer for the specific Concurrent Losses or Seller Company Losses subject to indemnification under Section 11.01 or Section 11.02, (as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the case may be) for which the Indemnified Party after deducting therefrom all deductible amountsis seeking indemnification, increases that is in premiums specifically tied to effect at such recoveries and out-of-pocket costs and expenses time of such recoveries in connection with loss and for which the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall may be entitled to recover damages indemnification; provided, further, nothing in this Section 9.4(d) shall -------- ------- require an Indemnified Party to obtain any insurance with respect to Concurrent Losses or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Company Losses if recovery has already been obtained pursuant to Section 2.04(as the case may be) for which it may seek indemnification hereunder.
Appears in 1 contract
Samples: Share Purchase and Warrant Issuance Agreement (Concurrent Computer Corp/De)
Liability Limits. Notwithstanding anything to 11.1 The liability of the contrary set forth hereinParties under the Warranties or the SBS Warranties, as the case may be, shall be limited as follows:
(a) The maximum there shall be disregarded for all purposes any breach of the Warranties in respect of which the amount of Buyer Losses the damages to which any of the Parties would otherwise be entitled is less than Euro 75,000, it being understood that breaches following from the Buyer Indemnified same or similar event shall be taken into account as one breach;
(b) the Parties are shall not be entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result any damages in respect of any breach or breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will Warranties unless the aggregate amount of Buyer Losses the damages in respect of such breach or breaches exceeds Euro 250,000 in which case the whole amount may be recovered by the Parties;
(c) the maximum aggregate liability of each of the Parties in respect of all and any claims relating to the Warranties and indemnities set forth in clause 12 shall not exceed Euro 40,950,000.
(d) Xxxxxxxx shall cease to have any liability under or in respect of the Warranties:
(i) on the date which is six years after Completion or such later date being six months after the expiry of the periods allowed for by law for the assessment of the liability of Xxxxxxxx in respect of the Warranties in Part 4 (Taxation) of the schedule headed “Warranties”; and
(ii) in respect of any other Warranties on the date which is 18 months following the date of Completion, except in respect of a claim of which SBS gives written notice to Xxxxxxxx before that relevant date, without prejudice to the Buyer Indemnified provisions of clause 10.9.
(e) SBS shall cease to have any liability under or in respect of the Warranties on the date which is 18 months after the date of Completion.
11.2 The Parties are entitled shall not be liable in respect of any Warranty Claim if and to recover from Seller pursuant the extent that it relates to Section 11.01(aany liability or obligation on the part of the Company or SBS, as the case may be:
(a) exceed for which adequate provision in accordance with GAAP is made in the total purchase price paid Pro Forma Completion Balance Sheet with respect to Seller.a Warranty Claim made by SBS to Xxxxxxxx or SBS’s Accounts with respect to a Warranty Claim made by Xxxxxxxx to SBS;
(b) Notwithstanding anything which would not have arisen but for a change in legislation (excluding case law) made after the date of this agreement (whether relating to the contrary contained in this Article XITaxation, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach rates of a representation Taxation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”otherwise); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.;
(c) If any Buyer Losses for which the Company actually received a tax refund or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have a reduction in tax actually been recovered in cash payable by the Indemnified Party after deducting therefrom all deductible amountsCompany, increases in premiums specifically tied to the extent that such recoveries and out-of-pocket costs and expenses of such recoveries in connection with refund or reduction is directly attributable to the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.Warranty Claim;
(d) No Buyer Indemnified for which SBS actually received a tax refund or a reduction in tax actually payable by SBS, to the extent that such refund or reduction is directly attributable to the facts giving rise to the Warranty Claim;
(e) for which the Company actually received an amount under any insurance policy or from any Third Party, to the extent that such amount is directly attributable to the facts giving rise to the Warranty Claim;
(f) for which SBS actually received an amount under any insurance policy or from any Third Party, to the extent that such amount is directly attributable to the facts giving rise to the Warranty Claim;
(g) of which with respect to a Warranty Claim under the Warranties, SBS has actual knowledge at the date of this agreement, actual knowledge shall be considered to be for the purposes of this sub-clause the actual knowledge of Xx. Xxxxx Kreuzen, Xx. Xxxx Xxx and Xx. Xxxxxxx xx Jong;
(h) of which with respect to a Warranty Claim under the SBS Warranties, Xxxxxxxx has actual knowledge at the date of this agreement, actual knowledge shall be considered to be for the purposes of this sub-clause the actual knowledge of Xx. Xxxxx Xxxxxxx and Xx. Xxxx xxx Steijn;
(i) which would not have arisen but for a change after Signing in the accounting bases on which the Company values its assets;
(j) which has been taken into account in the Aggregate Amount or for which SBS or the Company received indemnification under clause 12.
11.3 If a Warranty Claim or a claim under the indemnities set out under clause 12.1 of this agreement arises as a result of or in connection with a liability or alleged liability to a third party (a Third Party Claim), then:
(a) the respective Party shall, and shall procure that the Company shall, notify the other Party of such Third Party Claim as soon as possible after having become aware thereof. As soon as possible following the date of such notification the Parties shall consult on the course of action to be taken, it being understood that a Party shall not be entitled to recover damages or obtain paymentsettle a Third Party Claim without having obtained the other Party’s prior written approval thereto, reimbursement, restitution or indemnity which shall not be unreasonably withheld;
(b) the respective Party shall and shall procure that the Company makes available to the other Party such persons and all such information as the other may reasonably require for assessing the Third Party Claim.
11.4 If:
(a) either Party makes a payment in respect of a Warranty Claim or an indemnity as listed in clause 12.1 (the Damages Payment); and
(b) within twelve months of the making of the relevant payment the other Party or the Company receives any one Buyer Loss sum other than from the other Party which would not have been received but for the circumstance which gave rise to that Warranty Claim or related group that claim under the indemnities as listed in clause 12.1; and
(c) the receipt of Buyer Losses if recovery that sum was not taken into account in calculating the Damages Payment; and
(d) before receipt of that sum, but after taking into account the Damages Payment, it has already been obtained pursuant compensated in full for the loss or liability which gave rise to Section 2.04the Warranty Claim or the claim under the indemnities as listed in clause 12.1 in question, it shall, promptly on receipt of that sum by it or the Company, repay to other Party an amount equal to the lower of (i) that sum and (ii) the Damages Payment, after deducting (in either case) all costs incurred by it or the Company in recovering that sum and any taxation payable by it or the Company by virtue of its receipt, provided that it may retain such amount in the event it or the Company has a claim against the other Party.
11.5 Nothing in this agreement shall qualify or limit the liability of the Parties in relation to:
(a) those Warranties set out in paragraphs 1.1 up to and including 1.3 and 1.5 of the schedule headed “Warranties” and in paragraphs 1.1 up to and including 1.3 of the schedule headed “SBS Warranties”, as the case may be; or
(b) any claim attributable to the fraud (bedrog), wilful misconduct or wilful concealment (grove xxxxxx), on the part of Xxxxxxxx or of any member of Veronica’s Group or SBS, as the case may be.
11.6 The aggregate maximum liability of Xxxxxxxx in relation to a claim under the Warranties and indemnities under this agreement and in relation to a claim under the Warranties and indemnities under the Purchase Agreement shall not exceed an amount of Euro 40,950,000.
Appears in 1 contract
Samples: Agreement for Transfer of Share Capital (SBS Broadcasting S A)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum Subject to Section 10.9, the Seller Parties, in the aggregate shall not be liable under this Article X for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that exceeds $100,000 (the Buyer Indemnified “Basket”), in which event the Seller Parties are entitled shall be liable for all Purchaser Losses in excess of the amount of the Basket, up to recover from an amount not to exceed $1,000,000 (the “Cap”); provided, however, the Surviving Obligations and the Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by SellerParties’ obligations under Sections 10.1(b)-(e) shall not exceedbe subject to, or apply toward satisfaction of, the Basket or the Cap. Subject to Section 10.9, the Seller Parties shall be liable for all Purchaser Losses with respect to a breach or inaccuracy of any Surviving Obligation up to an amount not to exceed $3,000,000 (the “Surviving Obligations Cap”); provided, however, the Seller Parties’ obligations under Sections 10.1(b)-(e) shall not be subject to, or apply toward satisfaction of, the Surviving Obligations Cap. The Xxxxxxxxx Family Trust and Xxxxxxxxx shall not be liable under this Article X for Purchaser Losses under Section 10.1(a) in an amount of more than the portion of the Total Consideration actually received by the Xxxxxxxxx Family Trust as a stockholder of the Seller in the aggregate, and the Xxxxxxxxx Family Trust and Xxxxxxxxx shall not be liable under this Article X for Purchaser Losses under Section 10.1(a) in an amount equal to $1,000,000. Without limiting of more than the foregoing, except portion of the Total Consideration actually received by the Xxxxxxxxx Family Trust as a stockholder of the Seller in the case of fraudulent misrepresentation by Seller, in no event will aggregate. For any Purchaser Losses for which the aggregate amount of Buyer Losses that the Buyer Purchaser Indemnified Parties are entitled seek to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to Xxxxxxxxx Family Trust or Xxxxxxxxx the contrary contained in this Article XI, (i) the Buyer Purchase Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds obtain settlement or indemnityrecovery from the Xxxxxxxxx Family Trust prior to seeking recovery directly from Xxxxxxxxx, contribution, and for any Purchaser Losses for which the Purchaser Indemnified Parties seek to recover from the Xxxxxxxxx Family Trust or similar paymentsXxxxxxxxx the Purchase Indemnified Parties shall use commercially reasonable efforts to obtain settlement or recovery from the Xxxxxx Family Trust prior to seeking recovery directly from Xxxxxxxxx; provided, however, that no the recovery priority established by this sentence shall not be construed as requiring that any Purchaser Indemnified Party Parties exhaust remedies or otherwise incur material additional costs or delays in seeking recovery under this Article X before proceeding directly against Xxxxxxxxx or Xxxxxxxxx.
(b) The Parties hereby acknowledge and agree that all qualifications in any representations and warranties as to or by material or materiality, including each reference to the defined term “Material Adverse Event,” shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered ignored in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party determining the amount of the applicable Losses arising from any such insurance proceeds breach (but not ignored in determining whether or indemnity, contribution, or similar payments, up to not the amount actually received in connection with such indemnification claimbreach has occurred).
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, the obligation to indemnify, defend and hold a Parent Indemnified Party harmless shall be limited as follows:
(a) The maximum amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of with respect to Fraud or breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) Representations or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal claims relating to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by SellerPre-Closing Taxes, in no event will shall the Company Indemnifying Parties be liable to the Parent Indemnified Parties for indemnification under Section 5.01(a) (i) until the aggregate amount of Buyer all Losses that in respect of indemnification under Section 5.01(a) exceeds $[***] (the Buyer Indemnified “Basket”), in which event the Company Indemnifying Parties are entitled shall, subject to recover from Seller pursuant to the other provisions of this Section 11.01(a5.06, only be liable for Losses in excess of the Basket or (ii) exceed in excess of $[***] (the total purchase price paid to Seller.“Cap”);
(b) Notwithstanding anything in no event shall the aggregate amount of indemnity required to be paid to the contrary contained in this Article XIParent Indemnified Parties with respect to breaches of any representation or warranty of the Company involving Fraud or for claims made under Section 5.01(c), Section 5.01(d), Section 5.01(e) or Section 5.01(h) exceed the lesser of (i) such Company Indemnifying Party’s pro rata portion of the Buyer Base Consideration and (ii) the aggregate Final Merger Consideration actually received by such Company Indemnifying Party;
(c) in no event shall the amount of indemnity required to be paid to the Parent Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) by any Company Indemnifying Party with respect to any claim for indemnification pursuant exceed such Company Indemnifying Party’s pro rata portion of such claim, determined, with respect to Section 11.01(aeach such Company Indemnifying Party, by multiplying (i) the total amount of the claim by (ii) a fraction, the numerator of which is the aggregate Final Merger Consideration actually received by such Company Indemnifying Party and the denominator of which is the aggregate Final Merger Consideration actually received by all Company Indemnifying Parties:
(d) in no event shall a Company Indemnifying Party be responsible for, or be required to make any payment with respect to, any breach of any representation or warranty by another Company Indemnifying Party relating to ownership of, or Liens upon, or similar representations or warranties, with respect to the securities of the Company owned by such other Company Indemnifying Party;
(e) for purposes of determining the amount of any Losses with respect to a breach or inaccuracy of a representation or warranty, warranty by the Company for purposes of Section 5.01 (other than a Seller Fundamental Representationbreach or inaccuracy of Section 2.26), only if, such representations and then only to the extent that: (i) with respect warranties will be read without regard to any claim materiality or knowledge qualifier (including, without limitation, any reference to “material,” “in all material respects” or Material Adverse Effect) contained therein;
(f) for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) purposes of the Disclosure Schedule, computing the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to of indemnifiable claims for Parent Losses, the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a each claim for indemnification.
(c) If any Buyer Parent Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no a Parent Indemnified Party shall be required deemed to institute be an amount equal to, and any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject payments to indemnification such Parent Indemnified Party under Section 11.01 or Section 11.02, as applicable, 5.01 shall be determined net of any third-party insurance or indemnitylimited to, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such Parent Losses that remain after deducting therefrom any third party insurance proceeds or and any indemnity, contribution, contributions or other similar payments, up payment actually recovered from any third party with respect thereto (net of any costs related to recover of such amounts); and
(g) any indemnity payment under this Agreement shall be treated as an adjustment to the amount actually received in connection with such indemnification claimFinal Merger Consideration for U.S. federal income Tax purposes unless otherwise required by applicable Law.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Merger Agreement (Lantronix Inc)
Liability Limits. Notwithstanding anything to the contrary set ----------------- forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller shall not make a claim against the Sellers for indemnification under Section 10.01(d) for Purchaser Losses, and ---------------- the Sellers will have no liability for indemnification of any Purchaser Indemnified Party pursuant to Section 11.01(a10.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in unless and until the aggregate, aggregate ---------------- Losses claimed thereunder exceed an amount equal to $1,000,000. Without limiting 250,000.00 (the foregoing"Threshold --------- Amount"), except in the case of fraudulent misrepresentation by Seller, in no event will and once the aggregate amount of Buyer such Losses that under Section 10.01(a) ------ ---------------- exceeds the Buyer Threshold Amount, the Purchaser Indemnified Parties are will be entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer all such Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts which they are entitled in excess of the Repurchase Threshold or Amount. The total aggregate amount of the General Threshold, as applicable, liability of the Seller for Purchaser Losses with respect any claims made pursuant to Section 10.01(a) other than ---------------- Claims arising under Section 4.19 (Environmental Matters) ("Environmental ------------- ------------- Claims") shall be payable by Seller pursuant limited to a claim for indemnification.
$3,000,000.00 (c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Partythe "Purchaser Cap"), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, ------ ------------- -------- however, that no Indemnified Party with respect to Environmental Claims the Purchaser Cap shall be required ------- increased by an additional $2,000,000 to institute any legal proceeding against any third Person. The $5,000,000 (the "Environmental Cap"), ----------------- and the Seller shall be liable for one half (1/2) of the amount of any Buyer Environmental Claims in excess of the Environmental Cap; provided, further, that -------- ------- total aggregate amount of the liability of the Company and the Seller for Purchaser Losses arising out of fraud or Seller Losses willful misconduct shall not be subject to any limits. Notwithstanding the foregoing, any indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash amounts payable by the Sellers pursuant to this Article X will be reduced by any amounts --------- actually recovered by any Purchaser Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied under insurance policies or other collateral sources with respect to such recoveries Losses and out-of-pocket costs and expenses of the Purchaser shall use Commercially Reasonable Efforts to collect any such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimamounts.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Stock and Limited Partnership Interest Purchase Agreement (Charys Holding Co Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount liability of Buyer the Companies and the Owners for Purchaser Losses that the Buyer Indemnified Parties are entitled with respect to recover from Seller any claims made pursuant to Section 11.01(a7.1(b) shall be limited to 50% of such Purchaser Losses; provided, however, that the liability of the Companies and the Owners for Purchaser Losses arising out of fraud or the Surviving Representations shall not be subject to such limitation.
(b) The total aggregate amount of the liability of the Companies and the Owners for Purchaser Losses with respect to any claims made pursuant to Section 7.1(b) shall be limited to ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000)(the “Cap Amount”); provided, however, that the liability of the Companies and the Owners for Purchaser Losses arising out of fraud or the Surviving Representations shall not be subject to the Cap Amount. Any funds remaining in the Indemnification Escrow Fund on the date that is eighteen (18) months after the Closing Date shall be released to the Companies; provided, however, that the Escrow Agent shall continue to hold any funds that are the subject of asserted but unresolved claims pursuant to the terms of the Escrow Agreement.
(c) The Purchaser shall obtain, at its sole expense, an insurance policy in respect of breaches or inaccuracies of the representations and warranties made in Article 3 hereof (such insurance policy, the “R&W Insurance Policy”). The Parties intend for the R&W Insurance Policy to be the sole and exclusive remedy in respect of Purchaser Losses for indemnification under Section 7.1(b) other than as a result the Indemnification Escrow Fund and that none of breaches the Companies or the Owners shall have aggregate liability in respect of Seller Fundamental Representations, breaches Purchaser Losses under Section 7.1(b) in excess of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceedthe Cap Amount, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoingeach case, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount Purchaser Losses arising out of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold fraud or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party Surviving Representations. The Purchaser shall use commercially reasonable efforts to collect such insurance proceeds ensure that the R&W Insurance Policy expressly provides that insurer thereunder shall have no subrogation rights to pursue any claim against the Companies or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required the Owners other than with respect to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimfraud.
(d) No Buyer Indemnified Party For purposes of this Article 7, any inaccuracy or breach of any representation or warranty (other than Section 3.6 and clause (a) of Section 3.8) shall be entitled determined without regard to recover damages materiality, “material adverse effect” or obtain payment, reimbursement, restitution other similar qualification contained in or indemnity in respect of any one Buyer Loss otherwise applicable to such representation or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04warranty.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Sellers shall only be liable for Purchaser Losses arising hereunder solely to the extent that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not any such Purchaser Losses exceed, in the aggregate, an amount equal to Twenty Thousand Dollars $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date 20,000.00 (the “Repurchase Threshold”"Norfolk Basket Amount"); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party Purchaser Losses arising under or pursuant to Sections 8.1(a), 8.1(b) and 8.1(d) of this Agreement shall not be required subject to institute any legal proceeding against any third Person. The the Norfolk Basket Amount, nor shall the amount of any Buyer such Purchaser Losses be included with other Purchaser Losses in determining whether such Norfolk Basket Amount has been reached.
(b) Purchaser shall only be liable for Norfolk Losses arising hereunder solely to the extent that any such Norfolk Losses exceed, in the aggregate, Twenty Thousand Dollars $20,000.00 (the "Horizon Basket Amount").
(c) The indemnification obligations of the Sellers hereunder shall not exceed in the aggregate one-half of the Purchase Price (the "Sellers' Cap Amount"); provided, however, that Purchaser Losses arising under or Seller Losses pursuant to Sections 8.1(a), 8.1(b) and 8.1(d) of this Agreement shall not be subject to indemnification under Section 11.01 or Section 11.02, as applicable, the Sellers' Cap Amount and there shall be determined net no limitation on the indemnification obligations of any third-party insurance the Sellers with respect to Purchaser Losses arising under or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied pursuant to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimprovisions.
(d) No Buyer Indemnified Party The Indemnification obligations of the Purchaser hereunder shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity not exceed in respect the aggregate one-half of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04the Purchase Price (the "Purchaser's Cap Amount").
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Medical Products Inc)
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement:
(a) The maximum amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in make a claim against the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will Seller for indemnification under this Agreement for Buyer Losses unless and until the aggregate amount of such Buyer Losses that exceeds Two Hundred Fifty Thousand Dollars ($250,000) (the “Threshold”) in which event Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.may claim indemnification for all Buyer Losses, in excess of One Hundred Twenty Thousand Dollars ($120,000);
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) maximum aggregate liability of the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim Seller for indemnification pursuant to Section 11.01(aor any other claim under this Agreement or in connection with the transactions contemplated thereby shall not exceed One Million Dollars ($1,000,000) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase ThresholdCap”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.;
(c) If Buyer’s remedies for monetary damages in respect of any Buyer Losses Loss on account of the breach by Seller of any representation, warranty or Seller Losses sustained by an Indemnified Party are covered by an insurance policycovenant contained in this Agreement or any deed, xxxx of sale or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party agreement entered into connection herewith shall be required the indemnification provided by Seller to institute any legal proceeding against any third Person. The amount of any Buyer Losses pursuant to this Section 11; and
(d) in no event shall either party be liable hereunder or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise transactions contemplated hereby for any consequential, special, exemplary or punitive damages. Further notwithstanding anything herein to the right of indemnification. If contrary, neither the Threshold nor the Cap shall apply to any Indemnified Party actually receives such insurance proceeds Party’s claim for indemnity against Seller or indemnity, contribution, Buyer arising from any common law fraud by Seller or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimBuyer.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sunlink Health Systems Inc)
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceedmake a claim for indemnification under Section 9.1(a)(i), in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will or Section 9.1(a)(ii) for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses exceeds $562,500 (the “Purchaser Basket”), in which event the Purchaser Indemnified Parties may claim indemnification for all Purchaser Losses in excess of $562,500. Notwithstanding the foregoing, the Purchaser Basket shall not apply to any Purchaser Losses arising out of or related to fraud, willful misconduct or gross negligence or a breach of the Fundamental Representations, and the Seller Parties shall be liable for all Purchaser Losses with respect thereto. The Seller Parties’ aggregate liability for Purchaser Losses (i) relating to claims for indemnification under Sections 9.1(a)(i) and 9.1(a)(ii) shall not exceed an aggregate of $10,000,000 (the “Cap”), provided that the Buyer Indemnified Parties are entitled Cap shall not apply to recover from claims with respect to breaches of the Fundamental Representations, claims based upon fraud or willful misconduct, or claims for breach of any covenant, agreement or undertaking under Sections 7.3 and 7.4 of this Agreement; and (ii) relating to items 1, 2, 3, 6 and 7 of Schedule 9.1(a)(v) of this Agreement shall not, when aggregated with Purchaser Losses described in the foregoing clause (i), exceed an aggregate of the Cap plus an additional $5,000,000 (the “Specific Indemnities Cap”). The Seller pursuant to Section 11.01(a) Parties’ aggregate liability for Purchaser Losses not limited by the Cap or the Specific Indemnities Cap shall not exceed the total purchase price paid to SellerPurchase Price.
(b) Notwithstanding anything contained herein to the contrary contrary, all “material,” “Material Adverse Effect” and similar materiality type qualifications contained in the representations and warranties shall be ignored and not given any effect for the indemnification provisions of this Article XI, Agreement for purposes of (i) determining the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to amount of any claim for indemnification pursuant to Section 11.01(a) Losses incurred with respect to the breach of a representation or warrantyindemnification provisions hereof, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), determining whether the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnificationPurchaser Basket has been surpassed.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will make any claim for indemnification under Section 10.1(a) for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses exceeds $25,000 (the “Basket”), in which event the Purchaser Indemnified Parties may claim indemnification for all Purchaser Losses, including the Basket; provided, however, that the Buyer Indemnified Parties are entitled Surviving Representations shall not be subject to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to SellerBasket.
(b) Notwithstanding anything The aggregate amount of Purchaser Losses recoverable by the Purchaser Indemnified Parties (by offset or otherwise) under Section 10.1(a) and/or Section 10.1(c) shall not exceed the Cap; provided, however, that the Surviving Representations and Purchaser Losses recoverable under Sections 10.1(b), (d), (e), (f) and (g) shall not be subject to the contrary contained in this Article XICap.
(c) Subject, (i) as applicable, to the Buyer recovery limitations under Section 10.6(b), the maximum aggregate amount of Purchaser Losses that the Purchaser Indemnified Parties shall be entitled to indemnification pursuant recover directly from the Major Stockholder (other than, subject to Section 11.01(a10.6(b), by offset) with respect to any claim for indemnification pursuant to under Section 11.01(a) with respect to 10.1 shall not exceed the breach greater of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); $1,578,000 and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (amount of Merger Consideration actually received by the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar paymentsMajor Stockholder; provided, however, the following shall not be subject to such limitation with respect to the Major Stockholder: (A) Purchaser Losses under Section 10.1(b) that no Indemnified Party shall be required to institute arise out of or result from any legal proceeding against any third Person. The amount breach of any Buyer covenant, agreement or undertaking made by the Major Stockholder or any of its Affiliates (excluding, for clarity, the Company (if otherwise applicable) from such “Affiliates”) under Article VI in this Agreement, and (B) Purchaser Losses or Seller Losses subject to indemnification under Section 11.01 10.1(g) that arise out of or Section 11.02relate to any fraud, as intentional misrepresentation, criminal activity, or willful misconduct of the Major Stockholder or any of its Affiliates (excluding, for clarity, the Company (if otherwise applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to ) from such recoveries and out-of-pocket costs and expenses of such recoveries “Affiliates”) in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimthis Agreement.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Merger Agreement (PRGX Global, Inc.)
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows:
(a) The maximum amount of Buyer Losses that Indemnified Parties shall not make a claim against Seller for indemnification under this Article VIII unless and until the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(ashall have suffered indemnifiable Losses in excess of Fifteen Million Dollars ($15,000,000) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliancethe “Buyer Deductible”) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the which case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, recover only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold Buyer Deductible; provided, that no Losses may be claimed by any Buyer Indemnified Party or the General Threshold, as applicable, shall be payable reimbursable by Seller pursuant to a claim for indemnification.
(c) If any or included in calculating the Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (Deductible other than an Affiliate Losses in excess of such Indemnified Party)Two Hundred Fifty Thousand Dollars ($250,000) (the “Threshold Amount”) resulting from a single claim or aggregated claims arising out of the same facts, the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds events or indemnity, contribution, or similar paymentscircumstances; provided, however, that no Indemnified Party any Losses arising under Section 8.1(a) with respect to any breach or inaccuracy of Section 3.6 shall not be subject to the Threshold Amount but shall be subject to the Buyer Deductible;
(b) in no event shall the aggregate amount of indemnity required to institute any legal proceeding against any third Person. The be paid by Seller pursuant to this Article VIII exceed One Hundred Million Dollars ($100,000,000) (the “Buyer Cap”);
(c) for purposes of computing the aggregate amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02claims against Seller, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No each claim by a Buyer Indemnified Party shall be entitled deemed to recover be an amount equal to, and any payments by Seller pursuant to this Article VIII shall be limited to, the amount of Losses that remain after deducting therefrom (i) any third party insurance proceeds and any indemnity, contributions or other similar payment payable by any third party with respect thereto, but only to the extent such proceeds, contributions or payments are actually received by a Buyer Indemnified Party, and (ii) any net Tax benefit actually recognized by a Buyer Indemnified Party or any Affiliate thereof with respect to the Losses or items giving rise to such claim for indemnification, with such net Tax benefit (if any) being determined by properly taking into account any adverse Tax consequences to a Buyer Indemnified Party or any Affiliate thereof with respect to the receipt of such indemnification payments from Seller;
(d) in any claim for indemnification under this Agreement, Seller shall not be required to indemnify any Person for special, exemplary or consequential damages, including loss of profit or revenue, any multiple of reduced cash flow, interference with operations, or loss of tenants, lenders, investors or buyers, other than special, exemplary or consequential damages actually paid to a Person other than a Buyer Indemnified Party;
(e) no Indemnifying Party shall have any liability under this Article VIII to indemnify any Indemnified Party with respect to a Loss to the extent that the Loss arose from any action taken directly or obtain paymentindirectly by any Indemnified Party on or after the Closing Date;
(f) no Party shall have any liability for any Loss which would not have arisen but for any alteration or repeal or enactment of any Law after the Closing Date;
(g) Seller shall have no liability for any Loss that would not have arisen but for any change in the accounting policies, reimbursementpractices or procedures adopted by Buyer or its Affiliates after the Closing Date, restitution or indemnity other than such changes in accounting policies to the extent but only to the extent the Financial Statements are not in compliance with GAAP as in effect on the date of the Financial Statements;
(h) in any case where a Buyer Indemnified Party recovers from third Persons any amount in respect of any one Buyer Loss or related group of Buyer Losses if recovery a matter with respect to which Seller has already been obtained indemnified it pursuant to Section 2.04.this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of (i) any amount previously so paid by Seller to or on behalf of the Buyer Indemnified Party in respect of such matter, and (ii) any reasonable amounts expended by Seller in pursuing or defending any third party claim arising out of such matter;
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in make a claim against the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will Seller for indemnification under Section 9 for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that (excluding all Purchaser Losses in respect of any single claim which do not exceed US$100,000, for which no claim for indemnification may be made (the Buyer “Threshold Amount”)) exceeds US$10,000,000 (the “Purchaser Basket”), in which event the Purchaser Indemnified Parties are entitled may claim indemnification only with respect to recover from Seller the amount of such Purchaser Losses in excess of the Purchaser Basket. The total aggregate liability, other than Excluded Liabilities pursuant to Section 11.01(a) exceed 1.4(j), of the total purchase price paid Seller for Purchaser Losses with respect to Seller.
any and all claims made pursuant to Section 9 shall be limited to US$137,500,000 (b) the “Indemnity Cap”). Notwithstanding anything to the contrary contained in this Article XIset forth herein, (i) the Buyer Indemnified Parties Threshold Amount and the Purchaser Basket shall be entitled not apply to the Seller’s indemnification pursuant obligations (x) based on Section 9.1(c) or (y) arising out of a breach of Section 5.16; (ii) the Indemnity Cap shall not apply to the Seller’s indemnification obligations arising out of (x) any of the Excluded Liabilities falling under clauses (b) through (i) and clauses (k) through (p) of Section 11.01(a1.4 or (y) a breach of Section 2.1(b), Section 2.3(b), Section 5.9 or Section 5.13; and (iii) the total aggregate liability of the Seller for Purchaser Losses with respect to any claim for indemnification and all claims made pursuant to Section 11.01(a) with respect to 9 that arise out of any of the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: Excluded Liabilities falling under clause (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(bj) of the Disclosure Schedule, the aggregate Buyer Losses Section 1.4 shall be limited to all Buyer Indemnified Parties (without duplication) exceed an amount a separate indemnity cap equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnificationUS$68,750,000.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. Notwithstanding anything contained in this Agreement to the contrary set forth hereincontrary, the rights to indemnification under this Agreement are limited as follows:
(a) The maximum amount of Buyer Losses that the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will make a claim for indemnification under this Article X for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses exceeds $200,000 (the “Purchaser Basket”), in which event the Purchaser Indemnified Parties may claim indemnification for Purchaser Losses to the full extent any such Purchaser Losses, up to a maximum of the Escrow Amount. Notwithstanding the foregoing, the Purchaser Indemnified Parties’ right to seek indemnification hereunder for (i) any Purchaser Losses that relate to any breach of the Buyer Indemnified Parties are entitled representations and warranties made in Sections 4.1 (Organization and Power), 4.2(a) (Authorization), 4.3 (Capitalization), 4.8 (Taxes), 4.12 (Brokerage), 4.15 (Company Benefit Plans) and 4.20 (Environmental) or (ii) any claims under Section 10.1(d), (f), (g) and (h) (subclauses (i) and (ii), collectively, the “Purchaser Basket Exclusions”) shall not be subject to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to SellerPurchaser Basket.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer The Member Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any not make a claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, under this Article X for Member Losses unless and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, until the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date such Member Losses exceeds $200,000 (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General ThresholdMember Basket”), whereupon only such amounts in excess of which event the Repurchase Threshold or Member Indemnified Parties may claim indemnification for Member Losses to the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount full extent of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar paymentsMember Losses, up to a maximum of $1,000,000. Notwithstanding the amount actually received foregoing, the Member Indemnified Parties’ right to seek indemnification hereunder for any Member Losses that relate to any breach of the representations and warranties made in connection with such indemnification claimSections 5.1 (Organization and Power), 5.2(a) (Authorization) and 5.7 (Brokerage) the “Member Basket Exclusion”) shall not be subject to the Member Basket.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will make a claim against Sellers for indemnification under Section 9.1(a) for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that exceeds on a cumulative basis $50,000) (the Buyer “Purchaser Liability Cushion”), in which event the Purchaser Indemnified Parties are entitled may claim indemnification for all Purchaser Losses and not merely the portion of such Losses in excess of $50,000; provided, that Purchaser Losses arising out of (i) any of the Specified Representations, (ii) any Excluded Liability, (iii) any breach of any covenant, obligation or undertaking of a Seller in this Agreement (including, without limitation, those to recover from Seller pursuant be performed or which arise after the Closing), (iv) any claim arising out of or based on fraud or intentional misrepresentation by a Seller, and (v) in each case claims for indemnification made thereunder (collectively, all such Purchaser Losses referred to in this proviso being referred to as “Non-Deductible Claims”), shall, subject to the provisions of Section 11.01(a) exceed 9.5(b), be indemnified in their entirety by the total purchase price paid Indemnifying Party and shall not be subject to Sellerthe limitations set forth in this Section 9.5. The Non-Deductible Claims will not count towards or reduce the Purchaser Liability Cushion.
(b) Notwithstanding anything to The total aggregate amount of the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) liability of Sellers for Purchaser Losses with respect to any claim for indemnification claims made pursuant to Section 11.01(a9.1(b) with respect (other than Non-Deductible Claims) shall be limited to the breach Purchase Price paid and payable as of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only the end of the Enterprise Earn-Out Period. The foregoing limitation on indemnification in this Section 9.5(b) shall not apply to the extent that: any indemnification claim (i) with respect arising from any circumstance of which a Seller had Knowledge on or prior to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and or (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a)involving fraud, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold willful concealment or the General Threshold, as applicable, shall be payable commission of any crime by Seller pursuant to a claim for indemnificationSeller.
(c) If The parties agree that with respect to any Buyer Losses representation or Seller Losses sustained by an Indemnified Party are covered by an insurance policywarranty, if such representation or an indemnificationwarranty contains a materiality qualification (e.g., contribution, “material,” “materially,” “material to the Business,” “in all material respects,” “Material Adverse Effect,” or similar obligation qualifiers), then solely for purposes of another Person (other than an Affiliate this Article IX, the threshold for determining whether a breach of such Indemnified Party)representation or warranty has occurred, individually or in the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute aggregate together with any legal proceeding against any third Person. The amount breaches of any Buyer Losses other representations and warranties (whether or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicablenot such representations and warranties contain materiality qualifications), shall be determined net Purchaser Losses in excess of the Purchaser Liability Cushion (without separately giving effect to any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimmateriality qualification).
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, the Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows:
(a) The maximum amount no amounts of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller indemnity shall be payable pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) 10.1 unless and until the Buyer Indemnified Parties shall have suffered Buyer Losses in excess of $1,500,000 (the “Threshold Amount”) in the aggregate, in which case the Buyer Indemnified Parties shall only be entitled to indemnification recover the amount of Buyer Losses in excess of the Threshold Amount; provided, that, notwithstanding the foregoing, amounts of indemnity for Buyer Losses (i) pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(aSections 10.1(a)(i) with respect to the breach of a representation or warrantyFundamental Representations, other than a Seller Fundamental Representation(ii) pursuant to Article XII, only if, and then only (iii) pursuant to the extent that: (iSection 10.1(a)(ii) with respect to covenants to be performed after the Closing, (iv) pursuant to Section 10.1(a)(iii) or (v) for fraud, in each case, shall not be subject to the Threshold Amount;
(b) in no event shall the aggregate amount of indemnity required to be paid by the Seller pursuant to Section 10.1 or otherwise exceed the Indemnity Escrow Amount (the “Buyer Cap”); provided, that, notwithstanding the foregoing, amounts of indemnity for Buyer Losses (i) pursuant to Section 10.1(a)(i) with respect to the Fundamental Representations, (ii) pursuant to Article XII, (iii) pursuant to Section 10.1(a)(ii) with respect to covenants to be performed after the Closing, (iv) pursuant to Section 10.1(a)(iii) or (v) for fraud ((i)-(v), the “Special Indemnities”), in each case, shall not be subject to the Buyer Cap but shall in no event exceed the Purchase Price;
(c) notwithstanding anything set forth herein to the contrary, other than indemnification obligations of the Seller with respect to the Special Indemnities, (i) any indemnification obligation of the Seller under this Agreement shall be satisfied solely from the Indemnity Escrow Fund and (ii) if the Indemnity Escrow Fund is insufficient to satisfy the Buyer Losses, then the Buyer Losses in question will remain unsatisfied;
(d) notwithstanding anything set forth herein to the contrary, all the indemnification obligations of the Seller (including with respect to the Special Indemnities) shall be first paid out of (and otherwise reduce the remaining amount of) the Indemnity Escrow Fund before any claim is made against any other Person thereafter;
(e) for purposes of computing the aggregate amount of indemnifiable claims against the Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by the Seller pursuant to Section 10.1 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom (i) any third party insurance proceeds, and any indemnity, contributions or other similar payment actually received from any third party with respect thereto, and (ii) any net Tax benefit (calculated without regard to any Transaction Deductions) actually realized in the taxable year of the indemnification payment by a Buyer Indemnified Party or any Affiliate thereof with respect to the Buyer Losses or items giving rise to such claim for indemnification;
(f) the amount of indemnity payable pursuant to Section 10.1 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Closing Date Indebtedness Statement or the Final Closing Statement;
(g) in any claim for indemnification attributable under this Agreement, no Party shall be required to indemnify any Person for punitive, special, exemplary or consequential damages, including loss of profit or revenue, any multiple of reduced cash flow, interference with operations, or loss of tenants, lenders, investors or buyers, except to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) extent for amounts paid to a third party where any of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller foregoing are awarded pursuant to a claim for indemnification.Third Party Claim that is subject to indemnification hereunder;
(ch) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation that becomes aware of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party a Loss for which it seeks indemnification under this Article X shall be required to use commercially reasonable efforts to collect mitigate such insurance proceeds or indemnity, contribution, or similar paymentsLoss including taking any actions reasonably requested by the Indemnifying Party and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate; provided, however, that no an Indemnified Party Party’s obligation to mitigate any Loss shall be required to institute not include any legal proceeding against any third Person. The amount of any Buyer Losses obligation or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds requirement that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, (i) such Indemnified Party shall refund or any of his or its Affiliates assume or incur any material Liability or (ii) would reasonably be expected to materially disrupt, or otherwise materially affect the Indemnifying Party the amount business or operations of such insurance proceeds Indemnified Party or indemnity, contribution, any of his or similar payments, up to the amount actually received in connection with such indemnification claim.its Affiliates;
(di) No in any case where a Buyer Indemnified Party recovers from any third party any net amount in respect of a matter with respect to which the Seller has indemnified Buyer pursuant to this Agreement, such Buyer Indemnified Party shall be entitled promptly pay over to recover damages or obtain payment, reimbursement, restitution or the Seller the amount so recovered; and
(j) any indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained payment under this Agreement pursuant to Section 2.04this Article X shall be treated as an adjustment to the Purchase Price for U.S. federal income tax purposes.
Appears in 1 contract
Samples: Stock Purchase Agreement (Trimble Navigation LTD /Ca/)
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a, Purchaser Indemnified Parties shall not make a claim against Sellers for indemnification under Section 11.1(b) The maximum unless and until the aggregate amount of Buyer all Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a11.1(b) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, exceeds an amount equal to One Million Two Hundred Thousand Dollars ($1,000,000. Without limiting 1,200,000) (the foregoing, except in the case of fraudulent misrepresentation by Seller“Purchaser Basket”), in no which event will Purchaser Indemnified Parties may claim indemnification for all Purchaser Losses, including the initial One Million Two Hundred Thousand Dollars ($1,200,000) (subject to the other limitations herein); provided, however, that the Fundamental Representations shall not be subject to and shall not count towards the Purchaser Basket. The total aggregate amount of Buyer the liability of Sellers for Losses that the Buyer Indemnified Parties are entitled with respect to recover from Seller any claims made pursuant to Section 11.01(a11.1(b) exceed shall be limited to Thirty Million Two Hundred Fifty Thousand Dollars ($30,250,000) (the “Purchaser Cap”); provided, however, that the total purchase price paid aggregate amount of the liability of Seller for Losses arising out of intentional fraud or a breach of any of the Fundamental Representations shall not be subject to Sellerany such limits. Notwithstanding anything to the contrary set forth herein, the total aggregate amount of the liability of Sellers under this Agreement and the transactions contemplated hereby (but, for the avoidance of doubt, excluding the Transition Services Agreement, the MasterCard Services Agreement and the Money Transfer Services Agreement) shall be limited to the Purchase Price.
(b) Notwithstanding anything to the contrary contained in this Article XIset forth herein, (i) the Buyer Seller Indemnified Parties shall be entitled to not make a claim against Purchaser for indemnification under Section 11.2(c) unless and until the aggregate amount of all Losses pursuant to Section 11.01(a11.2(c) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed exceeds an amount equal to the amount of the Repurchase Reserve as of the Closing Date One Million Two Hundred Thousand Dollars ($1,200,000) (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General ThresholdSeller Basket”), whereupon only such amounts in excess of which event Seller Indemnified Parties may claim indemnification for all Seller Losses, including the Repurchase Threshold or initial One Million Two Hundred Thousand Dollars ($1,200,000) (subject to the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Partylimitations herein), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party the Fundamental Representations shall not be required subject to institute any legal proceeding against any third Personand shall not count towards the Seller Basket. The total aggregate amount of the liability of Purchaser for Losses with respect to any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained claims made pursuant to Section 2.0411.2(c) shall be limited to Thirty Million Two Hundred Fifty Thousand Dollars ($30,250,000) (the “Seller Cap”); provided, however, that the total aggregate amount of the liability of Purchaser for Losses arising out of intentional fraud or a breach of any of the Fundamental Representations shall not be subject to any such limits. Notwithstanding anything to the contrary set forth herein, the total aggregate amount of the liability of Purchaser under this Agreement and the transactions contemplated hereby (but, for the avoidance of doubt, excluding the Transition Services Agreement, the MasterCard Services Agreement and the Money Transfer Services Agreement) after the payment of the Purchase Price to Seller shall be limited to the Purchase Price.
Appears in 1 contract
Samples: Asset Purchase Agreement (C H Robinson Worldwide Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount GPI shall have no liability for Losses until such time as the aggregate of Buyer such Losses that exceeds $1,500,000 (the Buyer "Deductible") and thereafter, GPI shall indemnify the Indemnified Parties are entitled for all Losses incurred in excess of the Deductible, provided the limitation contained in this Section 3(a) shall not apply with respect to recover from Seller Losses arising under Section 8.5 of the Merger Agreement, and provided further that Losses pursuant to Section 11.01(a) (other than as a result 8.5 of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) the Merger Agreement shall not exceed, be taken into account in determining whether the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to SellerDeductible has been met.
(b) Notwithstanding anything to the contrary contained in Solely for purposes of this Article XIAgreement, (i) the Buyer Indemnified Parties a Loss or series of related Losses shall be deemed to have a Material Adverse Effect if the amount of such Loss or series of related Losses exceeds $250,000.
(c) In the case of all Premises (including the College Park Premises and including Development Properties and Contract Properties acquired after the Closing Date) if there shall be a Material Adverse Effect and an Indemnified Party (A) shall make a claim for a Loss with respect to which an Indemnified Party is entitled to indemnification pursuant under Section 2 (a) resulting from (1) a reduction or offset of rent for a period which is less than the remaining term of the lease or (2) a tenant claim for one time refund of rent or other amounts, then in either case, the amount of the Loss shall be equal to Section 11.01(asuch offset, reduction or tenant claim or (B) shall make a claim for a Loss with respect to any claim which an Indemnified Party is entitled to indemnification under Section 2(a) resulting from a reduction or offset of rent for indemnification pursuant a period equal to the remaining term of the lease, then the amount of the Loss shall be equal to ten (10) times the amount of such offset or reduction. In the case of the College Park Premises, if either (1) a reduction in rent during the extension period from the rent for such extension period set out by the terms of the current lease and/or (2) a reduction in the GSA buyout option price, as contemplated by Section 11.01(a) 2.B or 2.C of the Purchase and Sale Agreement with respect to the breach College Park Premises, then the amount of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only the Loss shall be equal to the extent that: present value of (i1) with respect to any claim for indemnification attributable the ten (10) year stream of such reduction in rent during the extension period plus (2) the reduction in the buyout option price ((1) and (2) discounted to the Company’s repurchase obligations date of the claim at a discount rate of 10%).
(d) Notwithstanding the preceding, GPI's aggregate liability for all Losses under this Agreement and, after the Closing Date, under the contracts identified Merger Agreement shall not exceed and shall be payable solely from the Second Closing Consideration (as adjusted). At the Second Closing, if any Indemnified Party shall have made a claim hereunder within the Claim Period which remains outstanding, HRPT shall deliver to _____________ as escrow agent (the "Escrow Agent") a number of HRPT Common Shares having a value (based on Section 11.05(bthe Merger Price) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Merger Agreement (Health & Retirement Properties Trust)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that the Buyer IFM shall be liable to Horizon Indemnified Parties are entitled and Horizon shall be liable to recover from Seller pursuant IFM Indemnified Parties for Damages only to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not the extent that any such Damages exceed, in the aggregate, an amount equal to Fifty Thousand Dollars ($1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a50,000.00) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”"Basket Amount"); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party Damages arising under or pursuant to Sections 4.1, 4.2, 4.4, 4.5, 5.1, 5.2, 9.1(a), (b) and (d), and 9.2(a), (b), and (d) shall not be required subject to institute any legal proceeding against any third Person. The Basket Amount, nor shall the amount of any Buyer Losses such Damages or Seller Losses indemnification be included in determining whether such Basket Amount has been reached.
(b) The indemnification obligations of IFM or Horizon hereunder shall not exceed the Purchase Price (the "Cap Amount"); provided, however, that any Damages arising under or pursuant to Sections 4.1, 4.2, 4.4, 4.5, 5.1, 5.2, 9.1(a), (b) and (d), and 9.2(a), (b), and (d) shall not be subject to indemnification under Section 11.01 or Section 11.02, as applicable, the Cap Amount and there shall be determined net no limitation on the indemnification obligations of IFM or Horizon with respect to Damages or indemnification arising under or pursuant to such Sections.
(c) Neither Horizon nor IFM shall be liable under this Agreement for any third-party insurance Damages arising out of or indemnityrelating to the Port Business (as that term is defined in that certain Asset Purchase Agreement by and between IFM and Horizon dated May 19, contribution or similar proceeds that have actually been recovered in cash 1998 (the "First 27 Purchase Agreement")) and the provisions of this Section 9 shall neither extend nor limit the indemnification provided by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimFirst Purchase Agreement.
(d) No Buyer Indemnified Party Neither Horizon nor IFM shall be entitled liable under this Agreement for any Damages arising out of or resulting from any defects in or damage or injury to recover damages any person caused by any Products manufactured or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained delivered by IFM to Horizon pursuant to Section 2.04the Manufacturing Agreement, such indemnification for such Damages to be as set forth in the Manufacturing Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Medical Products Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
, the Parent Indemnified Parties shall not make a claim against the Shareholders (aincluding the Key Shareholders) The maximum or the Company for indemnification under Sections 11.1(a), 11.1(b) (except in the case of Section 11.1(b), any covenants, agreements or undertakings set forth in Sections 7.1(b), 7.1 (d)-(o), 7.1 (q)-(t), 7.2, 7.5, 7.9, 7.10, 7.14, 7.16 and 7.17) or Section 11.2 for Losses unless and until the aggregate amount of Buyer such Losses with respect to any claim or series of related claims for which the Parent Indemnified Parties are otherwise entitled to indemnification exceeds $1,500,000 (the “Parent Deductible”) (it being understood and agreed that the Buyer Parent Deductible is intended as a deductible). If the aggregate amount of Losses for which the Parent Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, indemnification under the provisions cited in the aggregatefirst sentence of this Section 11.7 exceeds the Parent Deductible, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Parent Indemnified Parties shall be entitled to indemnification pursuant be paid the excess of the aggregate amount of all such Losses over the Parent Deductible, subject to Section 11.01(a) the other limitations on recovery set forth in this Article XI. The total aggregate amount of the liability of the Shareholders and the Company for Losses with respect to any claim for indemnification claims made pursuant to the provisions cited in the first sentence of this Section 11.01(a) with respect 11.7 shall be limited to the breach Escrow Amount and the sole and exclusive remedy of a representation or warrantyParent shall be to proceed against the Escrow; provided, other than a Seller Fundamental Representationhowever, only if, and then only to the extent that: (i) with respect the liability of the Shareholders for Losses arising out of or related to any claim for indemnification attributable fraud shall not be subject to the Company’s repurchase obligations under Parent Deductible or limited to the contracts identified on Section 11.05(bEscrow Amount, (ii) the liability of the Disclosure ScheduleShareholders for Losses arising out of or related to a breach of any of the Surviving Representations shall not be subject to the Parent Deductible or limited to the Escrow Amount, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to but shall be capped at the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”)Adjusted Merger Payment; and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; providedprovided further, however, that no Indemnified Party Losses arising out of or related to a breach of Section 4.15(q) shall be required to institute capped at $10,250,000, and (iii) for purposes of calculating the Parent Deductible, any legal proceeding against any third Person. The amount breaches of any Buyer Losses representation or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, warranty shall be determined net of calculated without reference to any third-party insurance materiality or indemnity, contribution adverse effect qualifier or similar proceeds that have actually been recovered exception set forth in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds representation or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimwarranty.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, any Indemnifying Party’s obligations to indemnify and hold any Indemnified Party harmless shall be limited as follows:
(a) The maximum amount No amounts of indemnity shall be payable pursuant to Section 7.1(a) or Section 7.4(a), as the case may be, unless and until the applicable Indemnified Party shall have incurred Buyer Losses that Losses, in the case of the Buyer Indemnified Parties are entitled to recover from Parties, or Seller pursuant to Section 11.01(aLosses, in the case of the Seller Indemnified Parties, in excess of 1% of the Base Purchase Price (the “Deductible Amount”) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal in which case the applicable Indemnified Party shall be entitled to $1,000,000. Without limiting the foregoingrecover only such Buyer Losses, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Parties, or such Seller Losses, in the case of the Seller Indemnified Parties, pursuant to Section 11.01(a7.1(a) exceed or Section 7.4(a), as the total purchase price paid to Seller.
(b) Notwithstanding anything to case may be, in excess of the contrary contained in this Article XI, (i) the Deductible Amount; provided that amounts of indemnity for Buyer Indemnified Parties shall be entitled to indemnification Losses pursuant to Section 11.01(a7.1(a) with respect to any claim for indemnification breach of any Company Fundamental Representation or any Seller Fundamental Representation or Seller Losses pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i7.4(a) with respect to any breach of any Buyer Fundamental Representation, as the case may be, shall not be subject to the Deductible Amount; provided further that, in respect of Section 7.1(a), no claim for indemnification attributable Buyer Losses may be made, and no Buyer Losses shall be applied against the Deductible Amount for any claim that does not cause Buyer Losses in an amount in excess of $50,000 (it being understood that any series of claims arising out of common facts or circumstances may be aggregated for this provision); provided further that, in respect of Section 7.4(a), no claim for Seller Losses may be made, and no Seller Losses shall be applied against the Deductible Amount for any claim that does not cause Seller Losses in an amount in excess of $50,000 (it being understood that any series of claims arising out of common facts or circumstances may be aggregated for this provision);
(b) In no event shall the aggregate amount of indemnity required to the Company’s repurchase obligations under the contracts identified on be paid by (i) Seller or any of its Affiliates pursuant to Section 11.05(b7.1(a) exceed 5% of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date Base Purchase Price (the “Repurchase ThresholdIndemnification Cap”); , and (ii) with respect if the Indemnification Cap is insufficient to all other claims for indemnification satisfy any amount of such Buyer Loss pursuant to Section 11.01(a7.1(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only then such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Loss shall remain unsatisfied and no Buyer Indemnified Party shall be entitled to recover damages such shortfall from Seller or obtain paymentany of its Affiliates through an indemnity claim pursuant to Section 7.1(a); provided that amounts of indemnity for Buyer Losses pursuant to Section 7.1(a) with respect to any breach of any Company Fundamental Representation or Seller Fundamental Representation shall not, reimbursementin each case, restitution be subject to the Indemnification Cap nor included for purposes of calculating the Indemnification Cap or (ii) Buyer or any of its Affiliates (including any Company Group Member) pursuant to Section 7.4(a) exceed the Indemnification Cap, and if the Indemnification Cap is insufficient to satisfy any amount of such Seller Loss pursuant to Section 7.4(a), then such amount of such Seller Loss shall remain unsatisfied and no Seller Indemnified Party shall be entitled to recover such shortfall from Buyer or any of its Affiliates (including any Company Group Member) through an indemnity claim pursuant to Section 7.4(a); provided that amounts of indemnity for Seller Losses pursuant to Section 7.4(a) with respect to any breach of any Buyer Fundamental Representation shall not, in each case, be subject to the Indemnification Cap nor included for purposes of calculating the Indemnification Cap;
(c) Except with respect to the indemnity payable pursuant to Section 7.2, in no event shall the aggregate amount of indemnity required to be paid by Seller, Buyer or any of their respective Affiliates pursuant to this Agreement exceed the Purchase Price.
(d) The amount of each claim for Losses by an Indemnified Party shall be deemed to be an amount equal to, and any payments by an Indemnifying Party shall be limited to, the amount of such Losses that remain after deducting therefrom any third party insurance proceeds actually received; provided, that the amount of third party insurance proceeds deemed to be actually received shall be net of (i) any deductible and any increase in premiums arising from such Losses and (ii) any other costs, expenses, Taxes or fees incurred in connection with receipt of such amounts.
(e) The amount of indemnity payable pursuant to Section 7.1 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Net Working Capital Schedule;
(f) Any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article VII shall be required to use commercially reasonable efforts to mitigate such Loss in accordance with applicable Law, and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to so mitigate; provided, however, that notwithstanding the foregoing, no Indemnified Party shall be required to (i) take any action that could reasonably be expected to be detrimental to its reputation or its business or (ii) commence or initiate Litigation or otherwise make any claim against any customer of such Indemnified Party or one of its Affiliates. The reasonable costs and expenses of such mitigation efforts shall be included in the Losses for which an indemnified person is entitled to indemnification hereunder;
(g) No Party shall have any liability for any Buyer Loss or Seller Loss, as the case may be, that would not have arisen but for any change in the accounting policies, practices or procedures adopted by Seller, Buyer and/or any of their respective Affiliates after the Closing;
(h) In any case where a Buyer Indemnified Party or a Seller Indemnified Party, as the case may be, recovers from any third party any amount in respect of any one a matter with respect to which such Buyer Loss Indemnified Party or related group of Buyer Losses if recovery Seller Indemnified Party has already been obtained indemnified pursuant to Section 2.04this Agreement, such Buyer Indemnified Party or Seller Indemnified Party, as the case may be, shall promptly pay over to the Indemnifying Party an amount equal to the lesser of the amount recovered from such third party, and the amount so paid by such Indemnifying Party in respect of such matter; and
(i) For purposes of determining whether there has been a breach of any representation or warranty contained in this Agreement and the amount of any Loss arising from such a breach, in each case, for purposes of determining indemnification pursuant to this Article VII, the determination shall be made disregarding any materiality, Material Adverse Effect or similar qualifications that may be contained therein.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in make a claim against the aggregate, an amount equal to $1,000,000. Without limiting Company or the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will Shareholder for indemnification under this Article IX for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that exceeds Five Million Dollars ($5,000,000) (the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a“Deductible”) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: that Purchaser Losses exceed the Deductible; provided, however, the Surviving Obligations and the Shareholder’s obligations pursuant to with respect to any breach or inaccuracy of any representation or warranty in (iAbsence of Certain Changes) or (Tax Returns; Taxes) or pursuant to , , or shall not be subject to the Deductible. For the avoidance of doubt, payments made by Purchaser pursuant to the Environmental Agreement shall not be considered Purchaser Losses and shall not be counted towards the Deductible. The total aggregate amount of the liability of the Shareholder for Purchaser Losses shall be limited to fifteen (15) percent of the Purchase Price (the “Purchaser Cap”) provided, however, the Surviving Obligations and the Shareholder’s obligations pursuant to with respect to any breach or inaccuracy of any representation or warranty in (Absence of Certain Changes), (Tax Returns; Taxes), (Compliance with Laws), or (Environmental, Health and Safety Matters), or pursuant to , , Section 9.1(e), , or shall not be subject to the Purchaser Cap. For purposes of determining the amount of any such Purchaser Losses (but not for the purpose of determining the existence of any breach, misrepresentation or inaccuracy) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) representation or warranty of the Disclosure ScheduleShareholder, the aggregate Buyer Losses any qualification as to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only materiality or Material Adverse Effect set forth in any such amounts in excess of the Repurchase Threshold representation or the General Threshold, as applicable, warranty shall be payable by Seller pursuant to a claim for indemnificationdisregarded.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Stock Purchase Agreement (Oil States International, Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum An Indemnified Party shall not make a claim against an Indemnifying Party for indemnification under Sections 8.1(a) or Section 8.2(a), as appropriate, unless and until the aggregate amount of Buyer such Purchaser Losses that or Shareholder Losses, as appropriate, exceeds $50,000 (the Buyer “Basket”), in which event the Indemnified Party may claim indemnification for all Purchaser Losses or Shareholder Losses, as appropriate, solely to the extent such losses exceed $50,000. The total aggregate liability of the Indemnifying Parties are entitled for Purchaser Losses or Shareholder Losses, as appropriate, shall be limited to recover from Seller pursuant thirty-five percent (35%) of the aggregate Purchase Price actually paid to Section 11.01(a) the Shareholders (other than the “Cap”). Neither the Basket nor the Cap shall apply to any Purchaser Losses or Shareholder Losses, as appropriate, arising out of fraud or a result breach of breaches of Seller Fundamental Representationsany representations and warranties contained in Sections 2.1 through 2.3, breaches of Section 4.15 (Mortgage Business ComplianceSections 2.4(a), 2.5, 2.9, 2.16, 2.17, 2.20, 2.25, or Sections 3.1 through 3.3 or 3.5, or the specific indemnification obligations set forth in Sections 8.1(c)(i) or breaches resulting from fraudulent (ii), (d), (e) or intentional misrepresentations by Seller(f) or 8.2(c), and the respective Indemnifying Party shall be liable for all Purchaser Losses or Shareholder Losses, as appropriate, with respect thereto; and the Basket shall not exceedapply to any Purchaser Losses arising out of the specific indemnification obligation set forth in Section 8.1(g); provided, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoinghowever, except in the case of fraudulent misrepresentation by Sellerfraud, in no event will shall the total liability of any Shareholder for any and all Purchaser Losses under this Article VIII exceed the pro rata portion of the aggregate Purchase Price actually paid to such Shareholder.
(b) In case any event shall occur that would otherwise entitle a Party to assert a claim for indemnification hereunder, no Losses shall be deemed to have been sustained by such Party to the extent of any Tax savings actually realized, within eighteen (18) months of such event, by such Party with respect thereto.
(c) Notwithstanding anything herein to the contrary, no party shall be entitled to indemnification or reimbursement from any other party under any provision of this Agreement for any amount to the extent such party or its Affiliate has been fully indemnified or reimbursed for such amount under any other provision of Buyer this Agreement, the exhibits or the schedules attached hereto, or any document executed in connection with this Agreement or otherwise. Furthermore, in the event any Losses that related to a claim by the Buyer Indemnified Parties Purchaser are covered by insurance, the Purchaser agrees to use commercially reasonable efforts to seek recovery under such insurance and the Purchaser shall not be entitled to recover from Seller pursuant the Shareholders (and shall refund amounts received up to Section 11.01(athe amount of indemnification actually received) exceed with respect to such Losses to the total purchase price paid to Sellerextent the Purchaser recovers the insurance payment specified in the policy.
(bd) Notwithstanding anything to the contrary contained in this Article XIAgreement, none of the parties hereto shall have any liability under any provision of this Agreement for any punitive, consequential, special or indirect damages, including diminution in value, loss of business reputation or opportunity or (iexcept to the extent provided below) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect loss of future profits, revenue or income, relating to the breach or alleged breach of a representation or warrantyany provision of this Agreement, other than a Seller Fundamental Representationregardless of whether such damages were foreseeable, only if, and then only except to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be damages are payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar paymentsthird party; provided, however, that no the foregoing limitation shall not prohibit or preclude recovery by a Purchaser Indemnified Party shall be required for lost profits on any Contracts that are active and funded as of the date of this Agreement to institute any legal proceeding against any third Personthe extent arising from a breach of the representations and warranties contained in Sections 2.14. The amount Each of the parties agrees to take commercially reasonable steps to mitigate their respective Losses upon and after becoming aware of any Buyer Losses event or Seller Losses subject condition which could reasonably be expected to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving give rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimLosses that are indemnifiable hereunder.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
in this Agreement, except with respect to the Extended Representations and Fundamental Representations (ato which subclauses (i) The maximum amount and (ii) of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to this Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller9.5(a) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XIapply), (i) the Buyer Parent Indemnified Parties shall not make a claim against the Stockholders or Optionholders for indemnification under Section 9.1(a) hereof for Parent Losses unless and until the aggregate amount of Parent Losses under Section 9.1(a) hereof exceeds $815,500 (the “Parent Threshold”), and if such Parent Losses exceed the Parent Threshold, the Parent Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect the entire amount of all such Parent Losses, subject to the breach other provisions of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”)this Agreement; and (ii) the right of the Parent Indemnified Parties to recover for any Parent Losses pursuant to Section 9.1(a) hereof shall not exceed $24,375,000.00 (the “Cap”). Notwithstanding the foregoing, the Parent Indemnified Parties shall be entitled to recover for, and the Parent Threshold and the Cap shall not apply to any Parent Losses with respect to all other claims any breach of or inaccuracy in any of the Extended Representations or Fundamental Representations or any claim against the Stockholders or Optionholders for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess under any of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation provisions of another Person (Section 9.1 other than an Affiliate of such Indemnified PartySection 9.1(a), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that (x) the aggregate liability of the Stockholders and Optionholders under this Agreement (including for the avoidance of doubt Section 10.6), any Ancillary Agreement or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the transactions contemplated hereby, shall not exceed the Aggregate Merger Consideration, and in no Indemnified Party event shall any Stockholder or Optionholder be liable for any amount in respect of Parent Losses in excess of the Aggregate Merger Consideration proceeds actually received by such Stockholder or Optionholder, (y) no individual Stockholder or Optionholder shall be required to institute liable for any legal proceeding against any third Person. The amount in excess of such Stockholder’s or Optionholder’s Allocation Percentage of any Buyer Losses particular Parent Loss under this Agreement (including for the avoidance of doubt Section 10.6), any Ancillary Agreement or Seller Losses subject to indemnification under Section 11.01 any other agreements, certificates or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries other instruments executed and out-of-pocket costs and expenses of such recoveries delivered in connection with this Agreement or the facts giving rise transactions contemplated hereby, and (z) no Stockholder or Optionholder shall be liable to any Parent Indemnified Party: (A) for the breach by any other Stockholder or Optionholder of the representations, warranties, covenants and agreements of such other Stockholder or Optionholder set forth in this Agreement, any Ancillary Agreement (or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the transactions contemplated hereby), including, for the avoidance of doubt, any failure by any such other Stockholder or Optionholder to comply with its obligations under Section 6.15 hereof, (B) if any representations, warranties, covenants and agreements made by any other Stockholder or Optionholder in this Agreement, any Ancillary Agreement (or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the transactions contemplated hereby) are ultimately determined to be unenforceable against such other Stockholder or Optionholder, or if any such agreements, certificates or other instruments (including any Letter of Transmittal) are ultimately determined not to comply with any applicable Laws, or (C) fraud by any other Person (in which case a claim for actual fraud may be asserted solely against the Person who committed such actual fraud and no other Stockholder or Optionholder shall be liable for the actual fraud committed by such other Person), and notwithstanding anything to contrary in this Agreement (including Section 9.5(b)), any claim for indemnification with respect to breaches of any representations, warranties, covenants and agreements made by a particular Stockholder or Optionholder in this Agreement, any Ancillary Agreement (or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the transactions contemplated hereby), or with respect to any alleged actual fraud committed by a particular Stockholder or Optionholder, must be asserted by the Parent Indemnified Parties directly against such particular Stockholder or Optionholder directly, and not against the Escrow Fund.
(b) Subject to the right limitations in Section 9.5(a), all claims for indemnification for Parent Losses shall be paid first, from the Escrow Fund until the Escrow Fund is depleted and then by the Stockholders and Optionholders, severally and not jointly and pro rata in proportion to their respective Allocation Percentages.
(c) Any material, materiality, “Material Adverse Effect” or “Company Material Adverse Effect” qualifications in the representations, warranties, covenants and agreements shall be disregarded for purposes of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party calculating the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimParent Losses hereunder.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(ai) The maximum amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller shall have no liability pursuant to Section 11.01(a8.1(a) for any individual claim (or group of related claims arising out of the same series of facts, conditions or events) unless the Buyer Losses in respect of such claim or group of related claims exceeds $37,500 (such amount, the “Buyer Mini-Basket”) (other than as a result of breaches of Seller Fundamental Representationsafter which, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything subject to the contrary contained terms, conditions and limitations otherwise set forth in this Article XIVIII, the Seller shall be liable for the full amount of such Buyer Losses);
(iii) the Buyer Indemnified Parties shall not make a claim against the Seller for indemnification under Section 8.1(a) for Buyer Losses unless and until the aggregate amount of such Buyer Losses exceeds $1,670,000 (the “Buyer Basket”), in which case the Seller shall be entitled to indemnification pursuant to Section 11.01(a) liable only for such Buyer Losses in excess of $835,000 (the “Buyer Basket Tipping Point”); provided, that solely with respect to any such claim for indemnification a breach of any representation or warranty for which the Seller delivers a Supplement pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule5.5(b), the Buyer Basket shall be deemed to equal $4,125,000 and the Buyer Basket Tipping Point shall be deemed to equal $2,062,500; and
(iii) the total aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as liability of the Closing Date Seller for Buyer Losses pursuant to Section 8.1(a) shall be limited to $16,700,000 (the “Repurchase ThresholdBuyer Cap”); . Notwithstanding anything to the contrary set forth herein, the Seller Fundamental Representations and (ii) with respect to all other claims for indemnification pursuant to the representations and warranties set forth in Section 11.01(a3.15(d), Section 3.15(e), and Section 3.17 shall not be subject to the Buyer Mini-Basket, the Buyer Basket or the Buyer Cap; provided, that the total aggregate amount of the liability of the Seller for Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”arising under Section 3.15(d), whereupon only such amounts Section 3.15(e), and Section 3.17 shall be limited to $167,000,000; provided, further, that in no event shall the Seller be responsible for any liability under this Agreement in an amount in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable proceeds received by Seller pursuant to a claim for indemnificationit hereunder.
(cb) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer and all Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, this Article VIII shall be determined net of any third-party insurance or amounts actually recovered pursuant to any insurance, indemnity, contribution reimbursement arrangement, or similar proceeds that have actually been recovered in cash by contract or other recovery available to the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries or its Affiliates in connection with the facts giving rise to the right of indemnificationindemnification (in each case, net of any fees, expenses or Taxes incurred in connection therewith, including increased premiums) (each, an “Alternative Recovery”). If The Indemnified Party will, subject applicable Law and Contract, use commercially reasonable efforts to seek recovery under all such Alternative Recoveries with respect to any Loss to substantially the same extent as such Indemnified Party would if such Loss were not subject to indemnification hereunder; provided, that the foregoing clause shall not be deemed to require that any Indemnified Party actually commence, defend or participate in litigation. In the event that the Indemnified Party receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement recovery of any indemnification amount pursuant to an Alternative Recovery for which it has already been indemnified by the Indemnifying Party hereunder, the Indemnified Party will promptly refund an equal amount to the Indemnifying Party.
(c) All Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement. No Losses may be recovered under this Article VIII to the extent such Losses were taken into account as Closing Indebtedness, Closing Transaction Expenses or Closing Aggregate Deferred Revenue in the adjustment of the Purchase Price pursuant to Section 2.6. No Indemnified Party will have any right to make a claim for any Loss under Section 11.01 or Section 11.02, as applicable, this Article VIII except to the extent such Indemnified Party shall refund to the Indemnifying believes in good faith that it is reasonably likely to, in fact, incur such Loss, and in no event can any Indemnified Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount recover under this Article VIII unless and until a Loss is actually received in connection with such indemnification claimincurred.
(d) No Buyer In no event shall any party hereto have any liability under any provision of this Agreement or any Ancillary Agreement for any (i) punitive or exemplary damages, (ii) unforeseeable consequential or unforeseeable special damages or (iii) any damages based on a multiple of earnings, in each case except to the extent paid or required to be paid by an Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04a third party.
Appears in 1 contract
Samples: Equity Purchase Agreement (Sequential Brands Group, Inc.)
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, each Indemnifying Party’s obligation to indemnify, defend and hold the Indemnified Parties harmless shall be limited as follows:
(a) The No amounts of indemnity shall be payable pursuant to Section 9.1(a)(i), Section 9.1(a)(ii), Section 9.1(b)(i), Section 9.1(b)(ii) (with respect to a breach by the Sellers of a covenant to be performed prior to the Closing), Section 9.2(b) (with respect to a breach by the Buyer of a covenant, agreement or undertaking to be performed prior to the Closing) or Section 9.2(a) unless and until the Indemnified Parties shall have suffered indemnifiable Losses (but excluding any Losses relating to Xxxxxxx Environmental Liabilities as described in Section 9.8, which are exclusively addressed by Section 9.8) in excess of $3,800,000 (the “Threshold Amount”) in the aggregate, in which case the Indemnified Parties shall be entitled to recover only Losses in excess of the Threshold Amount, provided that no Losses may be claimed by any Indemnified Party or shall be reimbursable by or included in calculating the Threshold Amount other than Losses in excess of $50,000 resulting from a single claim or aggregated claims arising out of the same facts, events or circumstances.
(b) Subject to the following sentences of this Section 9.5(b), no Seller shall have any indemnification obligation under this Agreement for an amount in the aggregate greater than $6,333,333 and the Buyer shall have no indemnity obligation under this Agreement for an amount greater than in the aggregate $19,000,000 (it being understood and agreed that these caps shall constitute a cap on the maximum amount aggregate liability payable by each Indemnifying Party under this Agreement). Notwithstanding the foregoing sentence of this Section 9.5(b), (i) with respect to the Seller Fundamental Representations, the maximum aggregate liability payable by each Seller under this Agreement with respect to such Seller Fundamental Representations shall be equal to such Seller’s Pro Rata Percentage of the Purchase Price less any other amounts indemnified by such Seller hereunder and (ii) with respect to the Buyer Fundamental Representations, the maximum aggregate liability payable by Buyer under this Agreement with respect to such Buyer Fundamental Representations shall be the Purchase Price less any other amounts indemnified by Buyer hereunder. Notwithstanding anything to the contrary in this Article IX, the Threshold Amount, the first sentence of this Section 9.5(b) and the proviso to Section 9.5(a) shall not apply to any Losses with respect to any Seller Fundamental Obligations (it being understood and agreed that the Sellers shall be liable for all Losses for which the Buyer Indemnified Parties are entitled to recover from Seller pursuant indemnification with respect to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliancesuch claims) or breaches resulting from fraudulent or intentional misrepresentations by Seller) with respect to any Buyer Fundamental Obligations (it being understood and agreed that Buyer shall not exceed, in be liable for all Losses for which the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Seller Indemnified Parties are entitled to recover from indemnification with respect to such claims), and any amounts recovered by Buyer Indemnified Parties in respect of Seller Fundamental Obligations or by Seller Indemnified Parties in respect of Buyer Fundamental Obligations shall not be included in determining whether the Threshold Amount has been reached for purposes of this Section 9.5.
(c) For purposes of computing the aggregate amount of claims against an Indemnifying Party, the amount of each claim by an Indemnified Party shall be deemed to be an amount equal to, and any payments by the Indemnifying Party pursuant to Section 11.01(a) exceed 9.1 or Section 9.3 shall be limited to, the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, amount of Losses that remain after deducting therefrom (i) any third party insurance proceeds and any indemnity, contributions or other similar payment paid to the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) Party by any third party with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warrantythereto, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02related to Losses incurred by SPRC, as applicable, such Indemnified Party shall refund to any net tax savings actually realized by SPRC in the Indemnifying Party tax period in which the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimclaim arises.
(d) In any claim for indemnification under this Agreement, the Indemnifying Party shall not be required to indemnify any Person for special, exemplary or consequential damages, including loss of profit or revenue, any multiple of reduced cash flow, interference with operations, or loss of tenants, lenders, investors or buyers.
(e) No Indemnifying Party shall have any liability under this Article IX to indemnify any Indemnified Party with respect to a Loss to the extent that the Loss is attributable to any action taken by any Indemnified Party on or after the Closing Date.
(f) The Sellers shall have no liability for any Loss that would not have arisen but for any change in the accounting policies, practices or procedures adopted by Buyer and/or its Affiliates.
(g) In any case where a Buyer Indemnified Party recovers from third Persons any amount in respect of a matter with respect to which the Sellers have indemnified it pursuant to this Agreement, such Buyer Indemnified Party shall be entitled promptly pay over to recover damages the Sellers the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of (i) any amounts previously so paid by the Sellers to or obtain payment, reimbursement, restitution or indemnity on behalf of the Buyer Indemnified Party in respect of such matter, and (ii) any one Buyer Loss amounts expended by the Sellers in pursuing or related group defending any claim arising out of such matter.
(h) The liability of the Sellers for Buyer Losses if recovery has already been obtained pursuant shall be considered in the aggregate and shall be determined on a cumulative basis so the Buyer Losses incurred under Article IX of this Agreement shall be combined with all other Buyer Losses incurred under Article IX for purposes of determining limitations on liability, including the maximum liability amounts described above.
(i) Any indemnity payment under this Agreement by the Sellers shall be treated as an adjustment to the Purchase Price for U.S. federal income tax purposes.
(j) For purposes of determining failure of any representations or warranties to be true and correct, the breach of any covenants and agreements and calculation of Losses hereunder, any qualification or exception with respect to “material”, “materially”, “materiality” or Material Adverse Effect or similar language contained therein shall be disregarded, provided that the foregoing shall not apply to Section 2.043.8(b).
(k) Notwithstanding anything in this Agreement to the contrary, except for any inaccuracy of the representation and warranty set forth in the last sentence of Section 3.22 of which the Company has Knowledge, Buyer shall not have any claim, action, suit, proceeding, right or remedy for any Loss arising out of, relating to or with respect to the failure by the Company to conduct the maintenance and capital project, and outage and shutdown of the No. 2 Dublin Power Boiler and the Dublin Paper Mill Machine #2, which was originally planned for September 2007 and rescheduled for April 2008.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The liability of the Seller Parties for Purchaser Losses with respect to any claims made pursuant to Section 7.1(a) shall be limited to 50% of such Purchaser Losses; provided, however, that the liability of the Seller Parties for Purchaser Losses arising out of Fraud or breaches of the Fundamental Representations shall not be subject to such limitation.
(b) The total aggregate amount of the liability of the Seller Parties for Purchaser Losses with respect to any claims made pursuant to Section 7.1(a) shall be limited to TWO HUNDRED THOUSAND DOLLARS ($200,000) (the “Cap Amount”); provided, however, that the liability of the Seller Parties for Purchaser Losses arising out of Fraud or breaches of the Fundamental Representations shall not be subject to the Cap Amount; provided, further, that, the maximum amount of Buyer Purchaser Losses that the Buyer Purchaser Indemnified Parties are shall be entitled to recover from each Seller pursuant to Section 11.01(a) Party under this Article VIII (other than as a result including Purchaser Losses arising out of breaches of Seller the Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceedexceed the aggregate portion of the Purchase Price actually received by such Seller Party and its Affiliates.
(c) Any funds remaining in the Indemnification Escrow Fund on the date that is twelve (12) months after the Closing Date shall be released to the Sellers; provided, however, that the Escrow Agent shall continue to hold any funds that are the subject of asserted but unresolved claims pursuant to the terms of the Escrow Agreement.
(d) The R&W Insurance Policy is the sole and exclusive remedy in respect of Purchaser Losses for indemnification under Section 7.1(a) other than the Indemnification Escrow Fund and the Sellers shall not have aggregate liability in respect of Purchaser Losses under Section 7.1(a) in excess of the Cap Amount, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoingeach case, except in the case of fraudulent misrepresentation by Seller, in no event will Purchaser Losses arising out of Fraud or the aggregate amount of Buyer Fundamental Representations. Prior to seeking indemnification under this Article VII for Purchaser Losses that the Buyer Indemnified Parties are entitled to recover resulting from Seller pursuant or relating to Section 11.01(a7.1(a) exceed or Section 7.1(e), a Purchaser Indemnified Party shall first make a claim to seek recovery under the total purchase price paid R&W Insurance Policy to Sellerthe same extent as they would if such Purchaser Losses were not subject to indemnification hereunder, except to the extent that such Purchaser Losses result from or relate to Fraud. For the avoidance of doubt, nothing set forth in this Section 7.5(d) shall require a Purchaser Indemnified Party to file suit or pursue or initiate litigation, mediation or any other applicable proceedings against the insurer under the R&W Insurance Policy prior to seeking indemnification under this Article VII.
(be) Notwithstanding anything The Purchaser, on behalf of Purchaser Indemnified Parties, agrees that the R&W Insurance Policy expressly excludes any subrogation rights to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to pursue any claim for indemnification pursuant to Section 11.01(a) against the Seller Parties other than with respect to the breach Fraud of a representation or warranty, other than a any Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnificationParty.
(cf) If any Buyer Purchaser Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policypolicy (other than the R&W Insurance Policy), or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Personparty. The amount of any Buyer Purchaser Losses or Seller Losses subject to indemnification under Section 11.01 7.1 or Section 11.027.2, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 7.1 or Section 11.027.2, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(dg) No Buyer Purchaser Indemnified Party Parties shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Purchaser Loss or related group of Buyer Purchaser Losses if recovery is obtainable, or has already been obtained obtained, pursuant to Section 2.041.4.
Appears in 1 contract
Samples: Securities Purchase Agreement (Repay Holdings Corp)
Liability Limits. Notwithstanding anything A. Anything contained in this Lease to the contrary set forth herein:notwithstanding, if Lessor, or any successor in interest, shall be a corporation, individual, joint venture, tenancy in common, firm or partnership, general or limited, or other legal entity, it is specifically understood and agreed that there shall be no personal liability on the stockholders or directors of such corporation or on such individual or the members of such firm, partnership, tenancy in common joint venture or upon such corporation, firm, partnership, tenancy in common joint venture, or other legal entity, in respect to any of the covenants or conditions of this Lease; and the Lessee shall look solely to the equity of the interest of Lessor in the Property for the satisfaction of the remedies of the Lessee in the event of a breach by the Lessor of any of the terms, covenants and conditions of this Lease to be performed by Lessor, and no other property or assets of such Lessor shall be subject to levy, execution or other enforcement procedure for the satisfaction of Xxxxxx's remedies.
(a) The maximum amount B. With respect to any provision of Buyer Losses this Lease which provides, in effect, that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) Lessor shall not exceedunreasonably withhold or unreasonably delay any consent or any approval, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties Lessee shall not be entitled to indemnification pursuant to Section 11.01(a) with respect to make, nor shall Lessee make, any claim for, and Lessee hereby waives any claim for indemnification pursuant to Section 11.01(a) with respect to the breach money damages by way of a representation setoff, counterclaim or warrantydefense, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to based upon any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”)or assertion by Lessee that Lessor has unreasonably withheld or unreasonably delayed any consent or approval; and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, but Xxxxxx's sole remedy shall be payable by Seller pursuant an action or proceeding for specific performance, injunction or declaratory judgment. In the event it is ever found in a court of competent jurisdiction that Xxxxxx acted to a claim for indemnification.
(c) If any Buyer Losses withhold or Seller Losses sustained by an Indemnified Party are covered by an insurance policydelay consent to willfully damage Lessee and Lessee seeks damages therefore, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), then the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, parties agree that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnitydamages shall be limited to actual damages, contributionand shall not include punitive damages, or similar payments, up to and in any event shall not exceed Three Hundred Thousand Dollars ($300,000.00) in the amount actually received in connection with such indemnification claimaggregate over the life of this Lease.
(d1) No Buyer Indemnified Party Anything contained in this Lease to the contrary notwithstanding, if Lessee, or any successor in interest, shall be entitled to recover damages a corporation, individual, joint venture, tenancy in common, firm or obtain paymentpartnership, reimbursementgeneral or limited, restitution or indemnity other legal entity, it is specifically understood and agreed that there shall be no personal liability on the stockholders or directors of such corporation or on such individual or the members of such firm, partnership, tenancy in common joint venture or upon such corporation, firm, partnership, tenancy in common joint venture, or other legal entity, in respect to any of the covenants or conditions of this Lease; and the Lessor shall look solely to the equity of the interest of Lessee in the Property for the satisfaction of the remedies of the Lessee in the event of a breach by the Lessee of any one Buyer Loss of the terms, covenants and conditions of this Lease to be performed by Xxxxxx, and no other property or related group assets of Buyer Losses if recovery has already been obtained pursuant such Lessee shall be subject to Section 2.04levy, execution or other enforcement procedure for the satisfaction of Xxxxxx's remedies, except as set forth in Paragraph 27.C.(2) below.
(2) Notwithstanding the provisions of Paragraph 27.C.(1) above, until the completion of the Improvements contemplated under Paragraph 10 and Exhibit C of this Lease, Xxxxxx's partners shall be personally responsible and liable for (i) any breach of Paragraph 14 ("Liens") of this Lease; (ii) the removal of any partial construction of the Improvements or other partial structure and restoration of the Premises should Lessee not complete its construction obligation under Paragraph 10 hereof; and (iii) an amount in addition to the foregoing of not to exceed Twenty Thousand Dollars ($20,000).
Appears in 1 contract
Samples: Ground Lease
Liability Limits. Notwithstanding anything to the contrary set forth herein:,
(a) The maximum amount of Buyer Frey Xxxreholders shall only be liable for Purchaser Losses arising hereunder to the extent that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not any such Purchaser Losses exceed, in the aggregate, an amount equal to One Million Dollars ($1,000,000. Without limiting ) (the foregoing"Shareholder Basket Amount") and such liability shall be only for amounts which, except in the case of fraudulent misrepresentation by Selleraggregate, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar paymentsShareholder Basket Amount; provided, however, that no Indemnified Party Purchaser Losses arising under or pursuant to any Shareholder Surviving Matters shall not be subject to the Shareholder Basket Amount and there shall be required no "threshold amount" on the indemnification obligations of the Frey Xxxreholders with respect to institute any legal proceeding against any third Person. such Purchaser Losses;
(b) The amount Frey Xxxreholders' aggregate liability for all Purchaser Losses shall not exceed One Hundred Million Dollars ($100,000,000) (the "Shareholder Maximum Amount") provided, however, that Purchaser Losses arising under or pursuant to Section 10.1(v), 10.1(vi) or 10.1(vii) shall not be subject to or considered in calculating the Shareholder Maximum Amount;
(c) Purchaser Losses arising under or pursuant to Section 10.1(i) as a result of a breach or inaccuracy of any Buyer Losses representation or Seller Losses warranty contained in Section 4.17 hereof or under or pursuant to Section 10.1(iv) shall be subject to indemnification under Section 11.01 or Section 11.02the following provisions:
(i) In calculating such Purchaser Losses, as applicable, such Purchaser Losses shall be determined net of any thirdreimbursements from governmental entities received by any Waldorf Entity for performing work the cost of which is otherwise included as Purchaser Losses hereunder;
(ii) The first One Million Eight Hundred Fifty Thousand Five Hundred Dollars ($1,850,500) of such Purchaser Losses shall be paid by Purchaser without, any contribution from the Frey Shareholders (the "Environmental Basket");
(iii) To the extent such Purchaser Losses, in total, exceed One Million, Eight Hundred Fifty Thousand Five Hundred Dollars ($1,850,500) but are equal to or less than Twenty-party insurance or indemnityOne Million, contribution or similar proceeds that have actually been recovered in cash Eight Hundred Fifty Thousand Five Hundred Dollars ($21,850,500), such Losses shall be paid one-half by the Indemnified Party after deducting therefrom all deductible amountsFrey Xxxreholders and one-half by Purchaser;
(iv) To the extent such Purchaser Losses, increases in premiums specifically tied to total, exceed Twenty-One Million Eight Hundred Fifty Thousand Five Hundred Dollars ($21,850,500), such recoveries and out-of-pocket costs and expenses Purchaser Losses shall be paid by Purchaser without any contribution by the Frey Xxxreholders;
(v) Except for a claim, if any, under Section 10.1(vii) hereof, the Frey Xxxreholders' maximum liability for Purchaser Losses arising under or pursuant to
Section 10.1 (i) as a result of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds a breach or indemnity, contribution, or similar payments after the settlement inaccuracy of any indemnification claim representation or warranty contained in Section 4.17 hereof or under or pursuant toSection 10.1(iv) shall be Ten Million Dollars ($10,000,000) as provided for in this Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.10.5(c);
(d) No Buyer Indemnified Party The Frey Xxxreholders shall not have any liability with respect to Purchaser Losses to the extent that any Waldorf Entity actually recovers from Champion International Corporation ("Champion") pursuant to the Purchase and Sale Agreement (the "Champion Agreement"), dated July 5, 1985, among Champion and Waldorf Corporation, based on the matters giving rise to such Purchaser Losses. To the extent of such recovery, such Purchaser Losses shall not be considered as Purchaser Losses. Purchaser shall cause Wabash or Waldorf to use commercially reasonable efforts to seek recovery from Champion for any Purchaser Losses for which, in the opinion of Purchaser's counsel, a Waldorf Entity is reasonably likely to be entitled to recover damages recovery under the Champion Agreement. If Purchaser does not seek recovery from Champion under the Champion Agreement with respect to any Purchaser Losses for which the Frey Xxxreholders have paid Purchaser, the Frey Xxxreholders shall be subrogated to any right of Purchaser or obtain paymentthe Waldorf Entities to seek recovery from Champion under the Champion Agreement with respect to such Purchaser Losses. To the extent that any Waldorf Entity recovers from the Frey Xxxreholders for any Purchaser Losses and Purchaser thereafter receives a payment for such Purchaser Losses from Champion with respect to such Purchaser Losses, reimbursementPurchaser shall refund an amount equal to such payment for such Purchaser Losses to the Frey Xxxreholders;
(e) It is understood that the purchase price payable hereunder has been determined, restitution in part, based upon the past earnings of the Waldorf Entities as reflected in the Financial Statements (the "Reported Earnings"). If the Reported Earnings were in fact overstated above the actual earnings of the Waldorf Entities, it is understood that, subject to the terms of this Section 10, Purchaser might otherwise have a claim under Section 10.1 for either or indemnity both of (i) for the amount of assets which are not otherwise owned by the Waldorf Entities (thus, for example, if the Reported Earnings for the year ended June 30, 1996 were $10 million and the actual earnings were $9 million, Purchaser might have a claim for $1 million to reflect the shortfall in respect earnings) and (ii) for some multiple of any one Buyer Loss the shortfall in earnings to reflect a diminution in value of the Waldorf Entities (where value was determined, in part, as a multiple of Reported Earnings) (a claim based upon a multiple of earnings being hereinafter referred to as a "Earnings Multiple Claim"). The parties agree that, with the exception of a claim under or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.0410.1 (vii), Purchaser Losses shall not be deemed to include an Earnings Multiple Claim; and
(f) In calculating Purchaser Losses arising under or pursuant to Section 10.1(i) as a result of a breach or inaccuracy of any representation or warranty contained in Section 4.12 hereof, such Purchaser Losses shall be net of any Tax refunds received by the Waldorf Entities after the Closing Date with respect to taxable periods ended on or before the Closing Date, excluding (i) any Tax refunds which are treated as assets of the Waldorf Entities (or which reduce the amount of any liability for Taxes) on the Financial Statements and (ii) any Tax refunds attributable to or resulting from the Canada Sale or the payment to GECC pursuant to the GECC Agreement, as modified by the Waldorf Settlement Document.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows:
(a) The maximum amount no amounts of Buyer Losses that indemnity shall be payable pursuant to Section 9.2(a) unless and until the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(ashall have suffered Buyer Losses in excess of $468,500 (the “Deductible Amount”) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the which case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, recover only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar paymentsDeductible Amount; provided, however, that Buyer Losses arising under Section 9.2(a) to the extent based on (i) Fundamental Representations or (ii) Fraud shall not, in each case, be subject to the Deductible Amount;
(b) in no Indemnified Party event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(a) exceed the Cap Amount; provided, that the limitation set forth in this Section 9.6(b) shall not apply to (i) Fraud (it being understood that there shall be required to institute no limitation on the liability of Indemnifying Parties directly or indirectly involved in any legal proceeding against any third Person. The amount of any Buyer Losses Fraud) or Seller Losses subject to indemnification under (ii) the matters referred in Section 11.01 or 9.2(b) through Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.9.2(i);
(dc) No no Losses may be claimed by any Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.9.2(h) or shall be reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, each Party’s obligation to indemnify, defend and hold any Indemnified Party harmless shall be limited as follows:
(a) The maximum No amounts of indemnity shall be payable pursuant to Section 11.1 unless the amount of Loss suffered by Buyer Losses that Indemnified Party related to each individual claim exceeds €139,000 (unless the single occurrence giving rise to Seller’s liability is part of a series of occurrences of the same kind arising out of the same set of facts), and then, subject to the other limitations of this Agreement, to the full extent of such claim;
(b) No amounts of indemnity shall be payable pursuant to Section 11.1 unless and until, after taking into account the other limitations of this Section 11.5, Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result shall have suffered indemnifiable Losses in excess of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, €300,000 in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the which case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(arecover only such Losses in excess of such amount;
(c) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, In no event shall the aggregate Buyer Losses amount of indemnity required to be paid by Seller to all Buyer Indemnified Parties (without duplication) exceed an amount equal to fifteen percent (15%) of the Purchase Price as adjusted pursuant to Section 3.2;
(d) The limitation amounts set forth in Sections 11.5(a), 11.5(b) and 11.5(c) shall not apply to (i) claims for Losses incurred by Buyer Indemnified Parties resulting from any fraud or willful misconduct of Seller in connection with this Agreement or the Seller Ancillary Documents, or (ii) any claims for indemnification relating to an Excluded Liability;
(e) For purposes of computing the aggregate amount of claims against Seller, the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all each claim by a Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, Party shall be payable deemed to be an amount equal to, and any payments by Seller pursuant to Section 11.1 shall be limited to, the amount of Losses that remain after deducting therefrom (A) the amount, if any, of any accrued liability or reserve on the Financial Statements and specifically identified to such Loss or category of such Loss, (B) the amount of any accrued liability or reserve included in the calculation of the Net Working Capital and specifically identified to such Loss or category of such Loss (excluding any amounts considered under clause
(A) (C) any third party insurance proceeds paid directly by a third party to Buyer or paid by Seller to Buyer following receipt of such proceeds from a third party and any indemnity, contributions or other similar payment payable by any third party with respect thereto, in each case only with respect to insurance policies in existence prior to the Closing and applicable to the Transferred Assets and (D) any net Tax benefit actually recognized by a Buyer Indemnified Party or any Affiliate thereof with respect to the Losses or items giving rise to such claim for indemnification.; and
(cf) If In any Buyer Losses or Seller Losses sustained by an claim for indemnification under this Agreement, no Indemnifying Party shall be required to indemnify any Indemnified Party are covered by an insurance policyfor indirect, punitive, special, or an indemnificationconsequential damages, contributionnor for any loss of profit or revenue, any multiple of reduced cash flow, loss of tenants, lenders, investors or similar obligation of another Person (other than an Affiliate of buyers incurred by such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no any of the foregoing damages shall be indemnifiable to the extent, and only to the extent, an Indemnified Party shall be required is obligated to institute pay any legal proceeding against any such damages as a result of a third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under party claim covered by Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim11.3(a).
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. Notwithstanding anything A. Anything contained in this Lease to the contrary set forth herein:notwithstanding, if Lessor, or any successor in interest, shall be a corporation, individual, joint venture, tenancy in common, firm or partnership, general or limited, or other legal entity, it is specifically understood and agreed that there shall be no personal liability on the stockholders or directors of such corporation or on such individual or the members of such firm, partnership, tenancy in common joint venture or upon such corporation, firm, partnership, tenancy in common joint venture, or other legal entity, in respect to any of the covenants or conditions of this Lease; and the Lessee shall look solely to the equity of the interest of Lessor in the Property for the satisfaction of the remedies of the Lessee in the event of a breach by the Lessor of any of the terms, covenants and conditions of this Lease to be performed by Lessor, and no other property or assets of such Lessor shall be subject to levy, execution or other enforcement procedure for the satisfaction of Xxxxxx's remedies.
(a) The maximum amount B. With respect to any provision of Buyer Losses this Lease which provides, in effect, that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) Lessor shall not exceedunreasonably withhold or unreasonably delay any consent or any approval, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties Lessee shall not be entitled to indemnification pursuant to Section 11.01(a) with respect to make, nor shall Lessee make, any claim for, and Lessee hereby waives any claim for indemnification pursuant to Section 11.01(a) with respect to the breach money damages by way of a representation setoff, counterclaim or warrantydefense, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to based upon any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”)or assertion by Lessee that Lessor has unreasonably withheld or unreasonably delayed any consent or approval; and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, but Xxxxxx's sole remedy shall be payable by Seller pursuant an action or proceeding for specific performance, injunction or declaratory judgment. In the event it is ever found in a court of competent jurisdiction that Lessor acted to a claim for indemnification.
(c) If any Buyer Losses withhold or Seller Losses sustained by an Indemnified Party are covered by an insurance policydelay consent to willfully damage Lessee and Lessee seeks damages therefore, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), then the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, parties agree that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnitydamages shall be limited to actual damages, contributionand shall not include punitive damages, and in any event shall not exceed Three Hundred Thousand Dollars ($300,000.00) in the aggregate over the life of this Lease.
C. Anything contained in this Lease to the contrary notwithstanding, if Lessee, or similar paymentsany successor in interest, up shall be a corporation, individual, joint venture, tenancy in common, firm or partnership, general or limited, or other legal entity, it is specifically understood and agreed that there shall be no personal liability on the stockholders or directors of such corporation or on such individual or the members of such firm, partnership, tenancy in common joint venture or upon such corporation, firm, partnership, tenancy in common joint venture, or other legal entity, in respect to any of the covenants or conditions of this Lease; and the Lessor shall look solely to the amount actually received equity of the interest of Lessee in connection with the Property for the satisfaction of the remedies of the Lessee in the event of a breach by the Lessee of any of the terms, covenants and conditions of this Lease to be performed by Xxxxxx, and no other property or assets of such indemnification claim.
(d) No Buyer Indemnified Party Lessee shall be entitled subject to recover damages levy, execution or obtain payment, reimbursement, restitution or indemnity in respect other enforcement procedure for the satisfaction of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04Lessor's remedies.
Appears in 1 contract
Samples: Ground Lease
Liability Limits. Notwithstanding anything to the contrary set ----------------- forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller shall not make a claim against the Sellers for indemnification under Section 10.01(d) for Purchaser Losses, and ---------------- the Sellers will have no liability for indemnification of any Purchaser Indemnified Party pursuant to Section 11.01(a10.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in unless and until the aggregate, aggregate ---------------- Losses claimed thereunder exceed an amount equal to $1,000,000. Without limiting 250,000.00 (the foregoing"Threshold --------- Amount"), except in the case of fraudulent misrepresentation by Seller, in no event will and once the aggregate amount of Buyer such Losses that under Section 10.01(a) ------ ---------------- exceeds the Buyer Threshold Amount, the Purchaser Indemnified Parties are will be entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer all such Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts which they are entitled in excess of the Repurchase Threshold or Amount. The total aggregate amount of the General Threshold, as applicable, liability of the Seller for Purchaser Losses with respect any claims made pursuant to Section 10.01(a) other than Claims arising ---------------- under Section 4.19 (Environmental Matters) ("Environmental Claims") shall be payable by Seller pursuant ------------- -------------------- limited to a claim for indemnification.
$3,000,000.00 (c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Partythe "Purchaser Cap"), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party with ------------- -------- ------- respect to Environmental Claims the Purchaser Cap shall be required increased by an additional $2,000,000 to institute any legal proceeding against any third Person. The $5,000,000 (the "Environmental Cap"), and the Seller ----------------- shall be liable for one half (1/2) of the amount of any Buyer Environmental Claims in excess of the Environmental Cap; provided, further, that total aggregate amount -------- ------- of the liability of the Company and the Seller for Purchaser Losses arising out of fraud or Seller Losses willful misconduct shall not be subject to any limits. Notwithstanding the foregoing, any indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash amounts payable by the Sellers pursuant to this Article X will be reduced by any amounts actually ---------- recovered by any Purchaser Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied under insurance policies or other collateral sources with respect to such recoveries Losses and out-of-pocket costs and expenses of the Purchaser shall use Commercially Reasonable Efforts to collect any such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimamounts.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Stock and Limited Partnership Interest Purchase Agreement (Charys Holding Co Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that the Buyer , no Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties Party shall be entitled to indemnification pursuant to Section 11.01(a) indemnified by the Seller under this ARTICLE 8 for any Purchaser Losses and no Seller Indemnified Party shall be indemnified by the Purchaser under this ARTICLE 8 for any Seller Losses with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach Claim unless such Claim involves Purchaser Losses or Seller Losses, as applicable, in excess of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date $50,000 (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General ThresholdDeductible”), whereupon only such amounts in excess of after which the Repurchase Threshold Seller or the General ThresholdPurchaser, as applicable, shall be payable by obligated for such aggregate Purchaser Losses or Seller Losses, as applicable, from the first dollar.
8.6.1 The total aggregate amount of the liability of the Seller for Purchaser Losses pursuant to a claim for indemnificationSection 8.1.1, Section 8.1.2 and Section 8.1.3 and of the Purchaser pursuant to Section 8.2.1, shall be limited to $2,000,000 (the “Cap”).
(c) If 8.6.2 Neither the Deductible nor the Cap shall apply to any Buyer Purchaser Losses or Seller Losses sustained (i) which are not expressly subject to the Cap; or (ii) in respect of any fraud Claim.
8.6.3 Payments by an Indemnifying Party pursuant to Section 8.1 or Section 8.2 in respect of any Purchaser Loss or Seller Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party are covered by an insurance policy, (or an indemnification, contribution, or similar obligation the Company) in respect of another Person (other than an Affiliate of any such Indemnified Party), the Claim. The Indemnified Party shall use its commercially reasonable efforts to collect such recover under insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance policies or indemnity, contribution or other similar proceeds that have actually been recovered in cash by agreements for any Losses before seeking indemnification under this Agreement.
8.6.4 In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any Claim).
8.6.5 The amount of any indemnity obligation of any Indemnifying Party to the Indemnified Parties provided in this Agreement shall be computed net of any insurance proceeds actually received by an Indemnified Party after deducting therefrom all (net of any deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of incurred with respect to such recoveries insurance Claims) in connection with the facts or as a result of any Claim giving rise to the right of indemnificationan indemnification Claim hereunder. If the indemnity amount is paid to the Indemnified Parties by any Indemnifying Party prior to the Indemnified Party’s actual receipt of insurance proceeds related thereto, the Indemnified Party actually shall, if permissible by the terms of the applicable policy, assign its right to such insurance and allow the Indemnifying Party to pursue collection of such insurance proceeds or, if such payment has been made by any of the Indemnifying Parties, and an Indemnified Party subsequently receives such insurance proceeds or indemnityproceeds, contribution, or similar payments after then the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund promptly pay to or at the direction of the Indemnifying Party the amount of such insurance proceeds subsequently received (net of all related costs, expenses and other losses), but not more, in the aggregate, than the indemnity amount paid by the Indemnifying Party. Notwithstanding the foregoing, no Indemnified Party shall be required to (i) pursue such insurance prior to seeking indemnification under this ARTICLE 8 or indemnity, contribution, or similar payments, up (ii) commence litigation to the amount actually received in connection with recover proceeds under such indemnification claiminsurance policies if it is unreasonable do so.
(d) 8.6.6 No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity indemnification hereunder for any loss in respect of any one Buyer Loss Claim to the extent that (i) such loss would not have arisen but for the enactment of any legislation not in effect on the Closing Date or any change of any Law or administrative practice of any Governmental Entity after the Closing Date or any change in any generally accepted accounting principles after the Closing Date, including in each case any legislation or change which takes effect retrospectively, (ii) such loss has arisen as a result of any act or omission by the party seeking indemnification on or after the Closing Date (including without limitation resulting from any change in accounting principles, practices or methodologies) and to the extent of any loss arising from any breach by the party seeking indemnification of its obligations under this Agreement (provided such party’s breach is a principal cause or principal contributing factor to such party’s Losses related group thereto), and (iii) such loss is offset by a corresponding gain accruing after the Closing Date, directly or indirectly, to the benefit of Buyer Losses if recovery has already been obtained pursuant the party seeking indemnification, as a direct result of the act, matter, omission or circumstance giving rise to Section 2.04such loss.
Appears in 1 contract
Samples: Securities Purchase Agreement (American International Holdings Corp.)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
: Neither Corporation nor the Shareholder shall be liable to Purchaser for Losses arising hereunder until the aggregate of such Losses incurred by Purchaser exceed $75,000 (a) The maximum the "Seller Basket Amount"); and then Corporation and the Shareholder shall be liable for all such Losses (not just the amount in excess of Buyer $75,000); provided, however, that Losses that the Buyer Indemnified Parties are entitled to recover from Seller arising under or pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations9.01(a)(ii), breaches Losses relating to any breach of Section 4.15 2.02 and Losses based on fraud shall not be subject to the Seller Basket Amount, and the amount of any such Losses shall not be included with other Losses in determining whether the Seller Basket Amount has been reached. Purchaser shall not be liable to Seller for any Losses arising hereunder until the aggregate of such Losses incurred by Seller exceed $75,000 (Mortgage Business Compliancethe "Purchaser Basket Amount") and then Purchaser shall be liable for all such Seller Losses (not just the amount in excess of $75,000); provided, however, that Losses arising under or breaches resulting from fraudulent or intentional misrepresentations by Sellerpursuant to Section 9.01(b)(ii) of this Agreement and Losses based on fraud shall not be subject to the Purchaser Basket Amount, and that the amount of any such Losses shall not be included with other Losses in determining whether the Purchaser Basket Amount has been reached. Except for Losses based on fraud (with respect to which there will be no limitation), the aggregate indemnification obligation of Corporation and the Shareholder hereunder shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date Purchase Price (the “Repurchase Threshold”"Seller Cap Amount"); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer neither Losses arising under or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.049.01(a)(ii) nor Losses relating to any breach of Sections 2.02, 2.11, or 2.14(d)-(j) shall be subject to the Seller Cap Amount and there shall be no limitation on the indemnification obligations of Corporation and the Shareholder with respect to such Losses. Except for Losses based on fraud (with respect to which there will be no limitation), Purchaser's indemnification obligations hereunder shall not exceed, in the aggregate, an amount equal to the Purchase Price (the "Purchaser Cap Amount"); provided, however, that Losses arising under or pursuant to Section 9.01(b)(ii) of this Agreement shall not be subject to the Purchaser Cap Amount and there shall be no limitation on the indemnification obligations of Purchaser with respect to Losses arising under or pursuant to such provision. Escrow Agreement. As security for the indemnification obligations of Seller hereunder, the Escrowed Amount will be placed in escrow with the Escrow Agent pursuant to the terms of the Escrow Agreement.
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Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceedmake a claim for indemnification under Section 9.1(a)(i), in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will or Section 9.1(a)(ii) for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses exceeds $562,500 (the “Purchaser Basket”), in which event the Purchaser Indemnified Parties may claim indemnification for all Purchaser Losses in excess of $562,500. Notwithstanding the foregoing, the Purchaser Basket shall not apply to any Purchaser Losses arising out of or related to fraud, willful misconduct or gross negligence or a breach of the Fundamental Representations, and the Shareholders shall be liable for all Purchaser Losses with respect thereto. The Shareholders’ aggregate liability for Purchaser Losses (i) relating to claims for indemnification under Sections 9.1(a)(i) and 9.1(a)(ii) shall not exceed an aggregate of $13,000,000 (the “Cap”), provided that the Buyer Indemnified Parties are entitled Cap shall not apply to recover from Seller pursuant claims with respect to Section 11.01(abreaches of the Fundamental Representations, claims based upon fraud or willful misconduct, or claims for breach of any covenant, agreement or undertaking under Sections 7.3 and 7.4 of this Agreement; and (ii) relating to items 1 and 2 set forth on Schedule 9.1(a)(v) of this Agreement shall not, when aggregated with Purchaser Losses described in the foregoing clause (i), exceed an aggregate of the Cap plus an additional $5,000,000 (the “Specific Indemnities Cap”). The Shareholders’ aggregate liability for Purchaser Losses not limited by the Cap or the Specific Indemnities Cap shall not exceed the total purchase price paid to SellerPurchase Price.
(b) Notwithstanding anything contained herein to the contrary contrary, all “material,” “Material Adverse Effect” and similar materiality type qualifications contained in the representations and warranties shall be ignored and not given any effect for the indemnification provisions of this Article XI, Agreement for purposes of (i) determining the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to amount of any claim for indemnification pursuant to Section 11.01(a) Losses incurred with respect to the breach of a representation or warrantyindemnification provisions hereof, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), determining whether the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnificationPurchaser Basket has been surpassed.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoingthis Agreement, except in the case of fraudulent misrepresentation by Sellera claim for fraud in the breach of any representation or warranty set forth in ARTICLE III or ARTICLE IV, in no event will the aggregate amount of Buyer Losses that the Equity Holders’ obligation to indemnify, defend and hold Buyer Indemnified Parties are entitled harmless, and Buyer’s obligation to recover from Seller indemnify, defend and hold the Equity Holder Indemnified Parties harmless, shall be limited as follows:
(a) No amounts of indemnity shall be payable pursuant to Section 11.01(a9.1(a) exceed the total purchase price paid to Seller.
(bor Section 9.2(a) Notwithstanding anything to the contrary contained in this Article XI, unless and until (i) each claim or series of claims arising from the Buyer same or substantially similar facts or circumstances exceeds $50,000 (the “De Minimis Threshold”) and (ii) the applicable Indemnified Parties shall have suffered Losses in excess of $3,500,000 (the “Deductible Amount”) in the aggregate, in which case such Indemnified Parties shall be entitled to indemnification recover only Losses in excess of the Deductible Amount; provided that amounts of indemnity for Losses pursuant to Section 11.01(a9.1(a) or Section 9.2(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation any Company Fundamental Representation or warranty, other than a Seller any Buyer Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall not be payable by Seller subject to the De Minimis Threshold or the Deductible Amount;
(a) Any indemnification obligation of the Equity Holders pursuant to a claim for indemnification.
(ci) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person this Article IX (other than an Affiliate of such Indemnified Partyany claim with respect to Item 1 on Schedule 9.1(f), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds ) or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party Section 5.4 shall be satisfied solely from the General Indemnity Escrow Fund and (ii) any claim with respect to Item 1 on Schedule 9.1(f) shall be satisfied solely from the Specific Indemnity Escrow Fund; it being understood that nothing in this Section 9.5(b) shall limit Buyer’s ability to recover Buyer Losses under the Buyer Rep and Warranty Policy;
(b) In no event shall the aggregate amount of indemnity required to institute be paid by the Equity Holders pursuant to Section 9.1 or otherwise (other than any legal proceeding against claim with respect to Item 1 on Schedule 9.1(f)) exceed the General Indemnity Escrow Fund, and if the General Indemnity Escrow Fund is insufficient to satisfy any third Person. The amount of any Buyer Losses Loss or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries Covered Tax (other than in connection with the facts giving rise any claims with respect to the right of indemnification. If any Indemnified Party actually receives Item 1 on Schedule 9.1(f)), then such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to Buyer Loss shall remain unsatisfied (solely as between the amount actually received in connection with such indemnification claim.
(dBuyer Indemnified Parties and the Equity Holders) No and no Buyer Indemnified Party shall be entitled to recover damages any such shortfall from any Equity Holder;
(c) In no event shall the aggregate amount of indemnity required to be paid by the Equity Holders pursuant to any claim with respect to Item 1 on Schedule 9.1(f) exceed the Specific Indemnity Escrow Fund, and if the Specific Indemnity Escrow Fund is insufficient to satisfy any amount of any Buyer Loss, then such amount of such Buyer Loss shall remain unsatisfied (solely as between the Buyer Indemnified Parties and the Equity Holders) and no Buyer Indemnified Party shall be entitled to recover any such shortfall from any Equity Holder;
(d) In no event shall the aggregate amount of indemnity required to be paid by the Buyer and its Affiliates hereunder exceed $585,000,000;
(e) The amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments from the Indemnity Escrow Fund pursuant to Section 9.1 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom (i) any third party insurance proceeds (net of any increase in insurance premium with respect thereto) and any indemnity, contributions or obtain paymentother similar payment actually recovered from any third party with respect thereto and (ii) any Tax benefit actually realized by a Buyer Indemnified Party or any Affiliate thereof with respect to Buyer Losses or items giving rise to such claim for indemnification to the extent the Tax benefit is actually realized in the year of the Buyer Loss or item giving rise to such a claim or the following two (2) taxable years, reimbursementor a prior year, restitution in each case of clauses (i) and (ii), net of any collection costs;
(f) The amount of indemnity payable pursuant to Section 9.1 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Closing Statement;
(g) Any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to (i) recover for such Loss under any available third party sources of recovery (including insurance policies), and (ii) mitigate such Loss after becoming aware thereof, and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable solely to the Indemnified Party’s failure to mitigate;
(h) No Party shall be deemed to have breached any representation or indemnity warranty under this Agreement solely as a result of (i) any alteration, repeal or enactment of any Law after the Closing Date (even if such alteration, repeal or enactment is applied with retroactive effect) or (ii) any change in the accounting policies, practices or procedures adopted by Buyer and/or its Affiliates after the Closing Date;
(i) In any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which the Equity Holders have indemnified Buyer pursuant to this Article IX, such Buyer Indemnified Party shall promptly pay over to the Escrow Agent, if during the applicable Claims Period or, to the Stockholders’ Representative (on behalf of the Equity Holders), if after the applicable Claims Period, the amount so recovered (but not in excess of the amount by which the Equity Holders have indemnified Buyer pursuant to this Agreement) net of any one costs of recovery;
(j) With respect to the matter referenced in Item 1 on Schedule 9.1(f), the Buyer Loss Indemnified Parties shall use their commercially reasonable efforts to obtain recovery for such matter under available insurance policies, and shall only be permitted to recover payment from the Specific Indemnity Escrow Fund after the Buyer Indemnified Parties have used their commercially reasonable efforts to obtain such recovery; provided that, it is expressly understood and agreed that the foregoing shall not in any way alter the time at which, or the ability of, the Buyer Indemnified Parties would otherwise be permitted to submit a notice of an indemnity claim pursuant to this Article IX;
(k) With respect to the matters referenced in Item 1 on Schedule 9.1(f), the Buyer Indemnified Parties shall only bring claims for Losses related group to or arising out of Buyer Losses if recovery has already been obtained such matter pursuant to Section 2.049.1(f), and not under any other clause of Section 9.1; and
(l) The liability of the Equity Holders for Buyer Losses shall be considered in the aggregate and shall be determined on a cumulative basis so Buyer Losses incurred under this Article IX shall be combined with all other Buyer Losses incurred under this Article IX for purposes of determining limitations on liability, including the maximum liability amounts described above.
Appears in 1 contract
Samples: Merger Agreement (Charles River Laboratories International Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount Neither any Seller nor any Shareholder shall be liable to Purchaser for Losses arising hereunder until the aggregate of Buyer such Losses incurred by Purchaser exceed $500,000 (the “Seller Basket Amount”); and then the Sellers and the Shareholders shall be liable for all such Losses (in excess of $250,000); provided, however, that the Buyer Indemnified Parties are entitled to recover from Seller neither Losses arising under or pursuant to Section 11.01(a9.01(a)(iii) (other than as a result nor Losses relating to any breach of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business ComplianceSections 2.13(b) or breaches resulting from fraudulent 2.15(d) and (e) or intentional misrepresentations 2.25(a) or any breach of covenant shall be subject to the Seller Basket Amount, and the amount of any such Losses shall not be included with other Losses in determining whether the Seller Basket Amount has been reached.
(b) Purchaser shall not be liable to any Seller or Shareholder for any Losses arising hereunder until the aggregate of such Losses incurred by Sellersuch parties exceed $500,000 (the “Purchaser Basket Amount”) and then Purchaser shall be liable for all such Seller Losses (in excess of $250,000); provided, however, that Losses arising under or pursuant to Section 1.03 or Section 9.01(b)(iii) of this Agreement or any breach of covenant shall not be subject to the Purchaser Basket Amount, and that the amount of any such Losses shall not be included with other Losses in determining whether the Purchaser Basket Amount has been reached.
(c) Except for Losses based on fraud (with respect to which there will be no limitation), the aggregate indemnification obligation of the Sellers and the Shareholders hereunder shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) Cash Portion of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date Purchase Price (the “Repurchase ThresholdSeller Cap Amount”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party neither Losses arising under or pursuant to Section 9.01(a)(iii) nor Losses relating to any breach of Sections 2.13(b),2.15(d) and (e) or 2.25(a) or any breach of covenant shall be required subject to institute the Seller Cap Amount and there shall be no limitation on the indemnification obligations of the Sellers and the Shareholders with respect to such Losses. Except for Losses based on fraud (with respect to which there will be no limitation), the indemnification obligation of each Shareholder hereunder shall not exceed the amount set forth opposite such Shareholder’s name below; provided, however, that neither Losses arising under or pursuant to Section 9.01(a)(iii) nor Losses relating to any legal proceeding against breach of Sections 2.13(b),2.15(d) and (e) or 2.25(a) or any third Person. The amount breach of covenant shall be subject to such limits and there shall be no limitation on the indemnification obligation of any Buyer Shareholder with respect to such Losses: Xxxxx Xxxxxxxx $ 5,335,000 Xxxxx Xxxx $ 5,335,000 Xxx Xxxxxx $ 330,000
(d) Except for Losses based on fraud (with respect to which there will be no limitation), Purchaser’s indemnification obligations hereunder shall not exceed, in the aggregate, an amount equal to the Cash Portion of the Purchase Price (the “Purchaser Cap Amount”); provided, however, that Losses arising under or Seller Losses pursuant to Section 9.01(b)(iii) of this Agreement or any breach of covenant shall not be subject to indemnification under Section 11.01 or Section 11.02, as applicable, the Purchaser Cap Amount and there shall be determined net no limitation on the indemnification obligations of the Purchaser with respect to such Losses.
(e) Notwithstanding any provision hereof to the contrary, it is expressly acknowledged and agreed that the Loss incurred by the Sellers and the Shareholders as a result of any third-party insurance or indemnitybreach of the Purchaser’s representations and warranties set forth in Sections 3.07 through 3.11 above shall be calculated based solely on the diminution in value of the Restricted Shares resulting from such breach, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up Loss shall be limited to the amount actually received in connection with difference, if a positive amount, between the value of such indemnification claimRestricted Shares at $6.50 per share and the actual value of the Restricted Shares on the date of determination of such Loss.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that the in this Agreement, Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will make a claim against Seller for indemnification under this Agreement for Buyer Losses unless and until the aggregate amount of such Buyer Losses that exceeds One Hundred Thousand Dollars ($100,000) (the “Deductible”) in which event Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed may claim indemnification for Buyer Losses in excess of the total purchase price paid to SellerDeductible.
(b) Notwithstanding anything to the contrary contained in this Article XIset forth herein, (i) the liability of Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to and for all other claims by Seller under Section 11.01(a) with respect 11.1 of this Agreement shall not exceed in the aggregate of one Hundred Fifty Thousand Dollars ($150,000), except in the case of the Fundamental Representations. Notwithstanding anything to the breach contrary set forth herein, the maximum aggregate liability of a representation or warranty, Seller and/or its Affiliates for indemnification and for all other than a Seller Fundamental Representation, only if, and then only to claims by Buyer under Section 11.2 of this Agreement shall not exceed in the extent that: aggregate of one hundred Fifty Thousand Dollars ($150,000): (i) with respect to the recapture of any claim payment made under, or for indemnification attributable any violation of, Medicare, Medicaid, Blue Cross, and CHAMPUS/TRICARE or claims or cost reports filed by Southern thereunder, or to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”)be filed; and or (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss other claim or related group liability relating to any period prior to Closing, except in the case of the Fundamental Representations. The limitations contained in this Section 11.6 shall not apply to any indemnification claims arising under Section 11.1(i) or Section 11.2(i) as a result of any Actual Fraud of Buyer Losses if recovery has already been obtained pursuant to Section 2.04or Seller, respectively.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sunlink Health Systems Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in make a claim against the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will Majority Shareholder for indemnification under Section 11.1(a) for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(aexceeds One Million Dollars ($1,000,000) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General ThresholdDeductible”), whereupon only in which event the Purchaser Indemnified Parties may claim indemnification for all such amounts Purchaser Losses in excess of the Repurchase Threshold Deductible, up to, but not to exceed Forty Million Dollars ($40,000,000)(the “Cap”). Notwithstanding the foregoing, (a) the Deductible shall not apply to any Purchaser Losses arising out of or related to a breach of Section 4.7(b) (Title to Assets), Section 4.17 (Company Benefit Plans), Section 4.22(d) (Licensed Intellectual Property), Section 4.23 (Affiliate Matters) or Section 4.30 (Brokers, Finders and Investment Bankers), and the General Threshold, as applicable, Majority Shareholder shall be payable by Seller pursuant liable for all Purchaser Losses with respect thereto, up to, but not to exceed the Cap, and (b) the Deductible and the Cap shall not apply to any Purchaser Losses arising out of or related to fraud or a claim for indemnification.
breach of Section 4.1(a)-(d) (c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified PartyOrganization), Section 4.2 (Authorization), Section 5.1 (Authorization and Validity of Agreement), Section 5.3 (Ownership of Equity) or Section 4.15 (Tax Returns; Taxes), any such Purchaser Losses shall not be aggregated toward the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnityCap, contribution, or similar payments; provided, however, that no Indemnified Party and the Majority Shareholder shall be required to institute any legal proceeding against any third Person. The amount of any Buyer liable for all Purchaser Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimrespect thereto.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that the in this Agreement, Seller’s obligation to indemnify, defend and hold harmless any Buyer Indemnified Parties are entitled to recover Party from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) Liability shall not exceedbe limited, in the aggregate, as follows:
(i) With respect to Liability due to Section 8.1(a) or Section 8.1(b) of this Agreement, except as otherwise provided, Seller’s obligation to indemnify, defend and hold harmless the Buyer Indemnified Parties shall not arise (i) for any individual Liability totaling less than Two Hundred Fifth Thousand Dollars (US$250,000) or (ii) unless and until, after taking into account the other limitations of this Section 8.4, the Buyer Indemnified Parties shall have suffered Liabilities indemnifiable under Section 8.1(a) or Section 8.1(b) which, in the aggregate, exceed one percent (1%) of the Purchase Price, in which case the Buyer Indemnified Parties shall then be entitled to recover the full amount of all Liabilities indemnifiable under Section 8.1(a) or Section 8.1(b) including any individual Liability totaling less than Two Hundred Fifty Thousand Dollars (US$250,000); provided, that in no event shall the aggregate amount required to be paid by Seller to all Buyer Indemnified Parties entitled to indemnity with respect to Liability under Section 8.1(a) or Section 8.1(b), except as otherwise provided, exceed an amount equal to $1,000,000ten percent (10%) of the Purchase Price. Without limiting The foregoing limitations shall not apply to a claim for indemnification to the foregoingextent such claim is based upon a breach of any of the Tax Representations, except Tax covenants to make any payment or reimbursement contained in the case Sections 5.14(a) through 5.14(d), or as a result of fraudulent any fraud, willful misconduct or intentional misrepresentation by Seller, in no event will connection with this Agreement.
(ii) for purposes of computing the aggregate amount of Buyer Losses that Liability indemnifiable by Seller, the amount of each Claim by a Buyer Indemnified Parties are entitled Party shall be deemed to recover from be an amount equal to, and any payments by Seller pursuant under Section 8.1(a) or Section 8.1(b) shall be limited to, the amount of Liability that remains after deducting therefrom any third Person insurance proceeds and any indemnity, contributions or other similar payment actually received by a Buyer Indemnified Party with respect to Section 11.01(a) exceed the total purchase price paid to Sellersuch Claim.
(b) Notwithstanding anything to the contrary contained in this Article XIIN ANY CLAIM FOR INDEMNIFICATION UNDER THIS AGREEMENT, NO PARTY SHALL BE REQUIRED TO INDEMNIFY ANY INDEMNIFIED PARTY FOR SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT OR REVENUE, ANY MULTIPLE OF REDUCED CASH FLOW, INTERFERENCE WITH OPERATIONS, OR LOSS OF LENDERS, INVESTORS OR BUYERS, EXCEPT WITH RESPECT TO THIRD PARTY CLAIMS (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”OTHER THAN CLAIMS BY AN ASSIGNEE); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Arch Coal Inc)
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, the obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless will be limited as follows:
(a) The maximum no amounts of indemnity will be payable pursuant to Section 10.01 unless and until the Buyer Indemnified Parties will have suffered Buyer Losses in excess of $3,000,000 (the “Deductible”) in the aggregate, in which case, indemnification shall, subject to the other limitations set forth in this Agreement (including Section 10.05(b) below), be available for Buyer Losses in excess of the Deductible; provided, that, notwithstanding the foregoing, amounts of indemnity for Buyer Losses (i) pursuant to Section 10.01(a)(i) with respect to the Fundamental Representations, or (ii) pursuant to Section 10.01(a)(ii), 10.01(a)(iii) and 10.01(a)(iv), in each case, will not be subject to the Deductible;
(b) no amounts of indemnity will be payable pursuant to Section 10.01 unless and until the Buyer Indemnified Parties will have suffered Buyer Losses in excess of $1,500,000 (the “Threshold Amount”) in the aggregate in excess of the Deductible, in which case the Buyer Indemnified Parties will be entitled to recover the full amount of Buyer Losses that in excess of the Deductible from the first dollar; provided, that, notwithstanding the foregoing, amounts of indemnity for Buyer Indemnified Parties are entitled to recover from Seller Losses (i) pursuant to Section 11.01(a10.01(a)(i) (other than as a result of breaches of Seller with respect to the Fundamental Representations, breaches of or (ii) pursuant to Section 4.15 (Mortgage Business Compliance10.01(a)(ii), 10.01(a)(iii) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceedand 10.01(a)(iv), in each case, will not be subject to the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, Threshold Amount;
(c) in no event will the aggregate amount of Buyer Losses that indemnity required to be paid to the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) this Agreement exceed the total purchase price paid to Seller.Indemnity Escrow Amount;
(bd) Notwithstanding notwithstanding anything set forth herein to the contrary contained in this Article XIcontrary, (i) any indemnification obligation of the Equityholders under this Agreement will be satisfied solely from the Indemnity Escrow Funds and (ii) if the Indemnity Escrow Funds are insufficient to satisfy the Buyer Losses and the Buyer Indemnified Parties shall do not have recourse therefor under the R&W Insurance Policy, then the Buyer Losses in question will remain unsatisfied;
(e) for purposes of computing the aggregate amount of indemnifiable claims (i) the amount of each claim for Buyer Losses by a Buyer Indemnified Party will be entitled deemed to indemnification be an amount equal to, and any payments from the Indemnity Escrow Funds pursuant to Section 11.01(a10.01 will be limited to, the amount of such Buyer Losses and (ii) against Buyer, the amount of each claim for Equityholder Losses by an Equityholder Indemnified Party will be deemed to be an amount equal to, and any payments by Buyer pursuant to Section 10.02 will be limited to, the amount of such Equityholder Losses, in each of clause (i) and (ii), that remain after deducting therefrom (x) any third party insurance proceeds actually received (net of any deductible or related expenses in pursuing such insurance proceeds), and any indemnity, contributions or other similar payment actually received from any third party with respect thereto, and (y) any net cash Tax benefit actually realized in the taxable year of the indemnification payment or any prior taxable year by a Buyer Indemnified Party or any Affiliate thereof with respect to the Buyer Losses or items giving rise to such claim for indemnification;
(f) the amount of indemnity payable pursuant to Section 10.01 with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only Buyer Loss will be reduced to the extent that: such Buyer Loss is included in the calculation of Closing Merger Consideration;
(ig) with respect to in any claim for indemnification attributable under this Agreement, no party will be required to indemnify any Person for punitive, special, or exemplary damages, except to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) extent for amounts paid to a third party where any of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller foregoing are awarded pursuant to a claim for indemnification.Third Party Claim that is subject to indemnification hereunder;
(ch) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation that becomes aware of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall a Loss for which it seeks indemnification under this ARTICLE X will be required to use commercially reasonable efforts to collect mitigate such insurance proceeds or indemnity, contribution, or similar paymentsLoss including taking any actions reasonably requested by the Indemnifying Party and an Indemnifying Party will not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate; provided, however, that no an Indemnified Party shall be required Party’s obligation to institute mitigate any legal proceeding against Loss will not include any third Person. The amount of any Buyer Losses obligation or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds requirement that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, (i) such Indemnified Party shall refund or any of his or its Affiliates assume or incur any material liability or (ii) would reasonably be expected to materially disrupt, or otherwise materially affect the business or operations of such Indemnified Party or any of his or its Affiliates;
(i) in any case where a Buyer Indemnified Party recovers from any third party any net amount (or receives any net cash Tax benefit as described in Section 10.05(e)(y)) in respect of a matter with respect to which the Equityholders have indemnified Buyer pursuant to this Agreement, such Buyer Indemnified Party will promptly pay over to the Indemnifying Party Representative (on behalf of the Equityholders) the amount so recovered (or the amount of such insurance proceeds or indemnitynet cash Tax benefit received, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.as applicable);
(dj) No in no event shall any Buyer Indemnified Party have any right to indemnification under this Section 10.05 to the extent that the applicable Losses are attributable to Taxes (i) arising in any taxable period (or portion thereof) beginning after the Closing Date (“Post-Closing Tax Period”), (ii) incurred as a result of any transaction outside the ordinary course of business occurring on the Closing Date after the Closing (and for this purpose, the time of Closing shall be entitled determined without regard to recover damages or obtain paymentthe final sentence of Section 2.01), reimbursement, restitution or indemnity (iii) arising due to the unavailability in respect any Post-Closing Tax Period of any one net operating losses, credits or other Tax attributes from a taxable period (or portion thereof) ending on or before the Closing Date, (iv) that were included in the calculation of Closing Merger Consideration or (v) that are attributable to the manner in which Buyer Loss or related group of Buyer Losses if recovery has already been obtained finances the Transactions; and
(k) any indemnity payment under this Agreement pursuant to Section 2.04this ARTICLE X will be treated as an adjustment to the Purchase Price for U.S. federal income tax purposes. Nothing in this Agreement will limit the liability of a party to another party for fraud.
Appears in 1 contract
Samples: Merger Agreement (Trimble Inc.)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum total aggregate amount of Buyer Losses that the Buyer Liability of the applicable Indemnifying Party shall not exceed the applicable Cap; and no Indemnified Parties are entitled to recover from Seller Party shall be indemnified by an Indemnifying Party pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will ARTICLE X for any Losses unless and until the aggregate amount of Buyer such Losses that exceeds $50,000 (the Buyer “Minimum Claim Amount”), after which the applicable Indemnified Parties are entitled Party shall be obligated for such aggregate Losses, including, but not limited to recover the Minimum Claim Amount, from Seller pursuant the first dollar, in an amount not to Section 11.01(a) exceed the total purchase price paid applicable Cap. For avoidance of doubt, the provisions of Section 2.7(b) are in addition to Sellerthis Section 10.6, i.e., this Section 10.6 shall not limit the provisions of Section 2.7(b) and any sums deducted under Section 2.7(b) shall not be counted in the Minimum Claim Amount.
(b) Notwithstanding anything Payments by an Indemnifying Party pursuant to the contrary contained ARTICLE X in this Article XI, (i) the Buyer Indemnified Parties respect of any Loss shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal limited to the amount of any Liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Repurchase Reserve as Indemnified Person in respect of the Closing Date (the “Repurchase Threshold”); and (ii) with respect any such Claim. The Indemnified Person shall use its commercially reasonable efforts to all recover under insurance policies or indemnity, contribution or other claims similar agreements for any Losses before seeking indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnificationunder this Agreement.
(c) If In no event shall any Buyer Losses Indemnifying Party be liable to any Indemnified Person for any punitive, incidental, exemplary, consequential, special or Seller Losses sustained by an Indemnified Party are covered by an insurance policyindirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement or any Transaction Document, or an indemnification, contribution, diminution of value or similar obligation any damages based on any type of another Person multiple (other than an Affiliate except to the extent such types of such Indemnified Partydamages constitute losses to a third party as a result of any Claim), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. .
(d) The amount of any Buyer Losses or Seller Losses subject indemnity obligation of any Indemnifying Party to indemnification under Section 11.01 or Section 11.02, as applicable, the Indemnified Parties provided in this Agreement shall be determined computed net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash received by the an Indemnified Party after deducting therefrom all Person (net of any deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of incurred with respect to such recoveries insurance Claims) in connection with the facts or as a result of any Claim giving rise to the right of indemnificationan indemnification Claim hereunder. If the indemnity amount is paid to the Indemnified Parties by any Indemnifying Party prior to the Indemnified Person’s actual receipt of insurance proceeds related thereto, the Indemnified Person shall, if permissible by the terms of the applicable policy, assign its right to such insurance and allow the Indemnifying Party actually to pursue collection of such insurance proceeds or, if such payment has been made by any of the Indemnifying Parties, and an Indemnified Person subsequently receives such insurance proceeds proceeds, then the Indemnified Person shall promptly pay to or indemnity, contribution, or similar payments after at the settlement direction of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds subsequently received (net of all related costs, expenses and other losses), but not more, in the aggregate, than the indemnity amount paid by the Indemnifying Party. Notwithstanding the foregoing, no Indemnified Person shall be required to (i) pursue such insurance prior to seeking indemnification under this ARTICLE X or indemnity, contribution, or similar payments, up (ii) commence litigation to the amount actually received in connection with recover proceeds under such indemnification claiminsurance policies if it is unreasonable do so.
(de) No Buyer Indemnified Party Person shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity indemnification hereunder for any loss in respect of any one Buyer Loss Claim to the extent that (i) such loss would not have arisen but for the enactment of any legislation not in effect on the Closing Date or any change of any Law or administrative practice of any Governmental Authority after the Closing Date or any change in any generally accepted accounting principles after the Closing Date, including in each case any legislation or change which takes effect retrospectively, (ii) such loss has arisen as a result of any act or omission by the party seeking indemnification on or after the Closing Date (including without limitation resulting from any change in accounting principles, practices or methodologies) and to the extent of any loss arising from any breach by the party seeking indemnification of its obligations under this Agreement or the other Transaction Documents (in each case provided such party’s breach is a principal cause or principal contributing factor to such party’s Losses related group thereto), and (iii) such loss is offset by a corresponding gain accruing after the Closing Date, directly or indirectly, to the benefit of Buyer Losses if recovery has already been obtained pursuant the party seeking indemnification, as a direct result of the act, matter, omission or circumstance giving rise to Section 2.04such loss.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Except for Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliancebased on fraud or Losses arising under Sections 9.01(a)(ii) or breaches resulting from fraudulent 9.01(a)(iii) or intentional misrepresentations by Seller) any breach of the representations and warranties in the Transition Services Agreement or failure to perform under the terms of the Transition Services Agreement (with respect to which there will be no limitation), Sellers' indemnification obligations hereunder shall not exceedbe limited, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to SellerEscrowed Amount.
(b) Notwithstanding anything Except for Losses based on fraud or Losses arising under Sections 9.01(b)(ii), 9.01(b)(iii), 9.01(b)(iv) or 9.01(b)(v) or any breach of the representations and warranties in the Warrant or failure to perform under the contrary contained in this Article XI, terms of the Warrant (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(awhich there will be no limitation), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, Purchasers' and Parent's indemnification obligations hereunder shall be payable by Seller pursuant limited, in the aggregate, to a claim for indemnification$600,000.00.
(c) If Except for Losses based on fraud, the indemnification provisions of this Article IX are the sole and exclusive remedy of any Buyer Losses or Seller Losses sustained by an Purchaser Indemnified Party for breach of any of Sellers' representations or warranties contained herein.
(d) Except for Losses based on fraud, the indemnification provisions of this Article IX are covered by an insurance policythe sole and exclusive remedy of any Seller Indemnified Party for breach of any of Parent or Purchasers' representations or warranties contained herein.
(e) Sellers shall not be liable to Purchaser Indemnified Parties for Losses arising under Section 9.01(a)(i), or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate unless and until the aggregate of such Losses exceed $60,000, and then Sellers shall be liable for all such Losses, not just the amount in excess of $60,000.
(f) Purchasers and Parent shall not be liable to Seller Indemnified PartyParties for Losses arising under Section 9.01(b)(i), unless and until the Indemnified Party aggregate of such Losses exceed $60,000, and then Purchasers and Parent shall be liable for all such Losses, not just the amount in excess of $60,000.
(g) All claims for Losses hereunder shall be made net of any insurance proceeds actually recovered by the party claiming such indemnification; provided, that, such party shall only be obligated to use commercially reasonable efforts to collect pursue any such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimproceeds.
(dh) No Buyer Indemnified Party In no event shall any party be entitled to recover damages liable under this Article IX for special, indirect, consequential (including lost profits) or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04punitive damages.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary ----------------- set forth herein:
(a) The maximum amount of Buyer Losses that , the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in make a claim against CTSI or the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will Seller for indemnification under Section 10.01 (d) for Purchaser Losses unless and until the aggregate amount of Buyer such Purchaser Losses that exceeds Four-Hundred Thousand Dollars ($400,000.00) (the Buyer "Purchaser Basket"), ---------------- in which event the Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed may claim indemnification for all Purchaser Losses, including the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed initial $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments400,000.00; provided, however, that no Indemnified Party (i) the Surviving Representations shall not be subject -------- ------- to the Purchaser Basket, and (ii) for purposes of calculating the Purchaser Basket, the dollar value of any breaches of any representation or warranty shall be required calculated without reference to institute any legal proceeding against any third Personmateriality or adverse effect qualifier or exception set forth in such representation or warranty. The total aggregate amount of the liability of the Company and the Seller for Purchaser Losses with respect any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained claims made pursuant to Section 2.0410.01(d) shall be limited to an amount equal to fifteen percent (15%) of the Purchase Price (the "Purchaser --------- Cap"); provided, however, that the total aggregate amount of the liability of --- -------- ------- the Company and the Seller for Purchaser Losses arising out of fraud, willful misconduct, or a violation of applicable securities or other laws shall not be subject to any limits. In addition, the aggregate liability of Purchaser and Parent to all Seller Indemnified Parties for any Seller Losses associated with any breach or failure by Purchaser or Parent to perform under Section 6.12 of this Agreement, or arising from any inability of Seller to sell the Issued Securities in the public market, shall not exceed $4,000,000.
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Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows:
(a) The maximum amount no amounts of Buyer Losses that indemnity shall be payable pursuant to Section 9.2(a) unless and until the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(ashall have suffered Buyer Losses in excess of $468,500 (the “Deductible Amount”) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the which case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, recover only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar paymentsDeductible Amount; provided, however, that Buyer Losses arising under Section 9.2(a) to the extent based on (i) Fundamental Representations or (ii) Fraud shall not, in each case, be subject to the Deductible Amount;
(b) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(a) exceed the Cap Amount; provided, that the limitation set forth in this Section 9.6(b) shall not apply to (i) Fraud (it being understood that there shall be no limitation on the liability of Indemnifying Parties directly or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or shall be required to institute any legal proceeding against any third Person. The amount of any reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.aggregated claims;
(d) No in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover damages any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or obtain payment, reimbursement, restitution or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of any one a matter with respect to which Seller has made indemnification payments to Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows:
(a) The maximum in no event shall Seller’s total aggregate liability for any and all Buyer Losses exceed the Base Purchase Price;
(b) for purposes of computing the aggregate amount of Buyer Losses that claims against Seller, the amount of each claim by a Buyer Indemnified Parties are entitled Party shall be deemed to recover from be an amount equal to, and any payments by Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations8.1 shall be limited to, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller remain after deducting therefrom (i) any third party insurance proceeds (including pursuant to Section 11.01(a5.16) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XIand any indemnity, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) contributions or other similar payment actually received from any third party with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”)thereto; and (ii) any net Tax benefit recognized by a Buyer Indemnified Party or any Affiliate thereof with respect to all other claims the Losses giving rise to such claim for indemnification indemnification, to the extent such benefit is recognized in the taxable year in which the relevant Losses were incurred or the immediately succeeding taxable year;
(c) the amount of indemnity payable pursuant to Section 11.01(a8.1 with respect to any Loss shall be reduced to the extent necessary to prevent duplication of any adjustment to the Closing Purchase Price reflected on the Final Closing Statement;
(d) in any case where a Buyer Indemnified Party recovers from third Persons any amount in respect of a matter with respect to which Seller has indemnified it pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts but not in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable sum of (i) any amount previously so paid by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation on behalf of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of such matter, and (ii) any one Buyer Loss amount expended by Seller in pursuing or related group defending any claim arising out of Buyer such matter;
(e) any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for all Tax purposes to the extent permitted by applicable Law; and
(f) for purposes of determining both the failure of any representation or warranty to be true and correct and calculating Losses if recovery has already been obtained pursuant hereunder, any qualifications in the representations and warranties herein as to Section 2.04“materiality”, “Material Adverse Effect” or words of similar import shall be disregarded.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein:
in this Agreement, the Cumulus Parties, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) any Buyer Indemnified Party with respect to (a) The maximum any single Claim or group of related Claims arising out of the same or similar facts and circumstances that result in Losses of less than $40,000 (each, a “De Minimis Claim”) under Section 11.1(a)(i), but solely in respect of representations and warranties that are not qualified by materiality or words of similar import, (b) any Claims under Section 11.1(a)(i) (including De Minimis Claims) unless and until the aggregate amount of Buyer such Claims result in Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting one percent (1.0%) of the foregoing, except in the case sum of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Closing Initial Consideration, and (ii) any Subsequent Closing Consideration actually paid to Seller (collectively, the “Representations and Warranties Deductible”), after which the Cumulus Parties collectively, shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim liable for indemnification pursuant to Section 11.01(a) with respect to all Losses in excess of the breach of a representation or warranty, other than a Seller Fundamental Representation, only ifRepresentations and Warranties Deductible, and then only to the extent that: (ic) with respect to any claim for indemnification attributable to the Company’s repurchase obligations Claims under the contracts identified on Section 11.05(b11.1(a)(i) resulting in excess of the Disclosure Schedule, the in an aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed cumulative amount in excess of an amount equal to the amount ten percent (10%) of the Repurchase Reserve as sum of (i) the Closing Date (the “Repurchase Threshold”); Initial Consideration, and (ii) with respect any Subsequent Closing Consideration actually paid to all other claims for indemnification pursuant to Section 11.01(a)Seller (collectively, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General ThresholdCap”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party Claims for indemnification that arise out of or relate to breaches of the Specified Representations and Warranties or of Section 5.11 or due to Fraud, by or on behalf of the Indemnifying Party, shall not be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification the limitations set forth in this sentence of Section 11.5. Notwithstanding the foregoing, in no event shall the Cumulus Parties, collectively, be liable for any Losses under Section 11.01 or Section 11.02this Agreement (including pursuant to this Article 11) in excess of the sum of (x) the Closing Initial Consideration, as applicable, shall be determined net of and (y) any third-party insurance or indemnity, contribution or similar proceeds that have Subsequent Closing Consideration actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied paid to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnificationSeller. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim Claim may be made both under Section 11.01 or 11.1(a)(i) and under Section 11.0211.1(a)(v), as applicable, such Indemnified Party shall refund to solely for the Indemnifying Party the amount purposes of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party this Section 11.5 it shall be entitled deemed to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to be made only under Section 2.0411.1(a)(v).
Appears in 1 contract
Samples: Master Agreement (Cumulus Media Inc)
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that in this Agreement, the Buyer Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in make a claim against the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will Shareholder for indemnification under this Article XI for Purchaser Losses unless and until the aggregate amount of Buyer Purchaser Losses that exceeds $3.75 million (the Buyer "Purchaser Basket"), and in any event only to the extent each individual Purchaser Loss or group of related individual Purchaser Losses which arise out of the same event or occurrence exceeds $50,000 (or, if the event or occurrence giving rise to such Purchaser Loss occurs after the date hereof and on or before the Closing Date, $100,000) (the "Loss Threshold"), in which event the Purchaser Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything may claim indemnification for all such Purchaser Losses to the contrary contained in this Article XIextent such Purchaser Losses exceed $1.5 million (the "Purchaser Deductible"); provided, however, (i) the Buyer Indemnified Parties Surviving Obligations, the Additional Surviving Obligations and the Surviving Representations shall not be entitled subject to indemnification pursuant to Section 11.01(athe Purchaser Basket, the Loss Threshold or the Purchaser Deductible, (ii) with respect the first $5 million of Special Losses shall not be subject to any claim of the liability limits in this Section 11.5(a) (including, for the avoidance of doubt, the Purchaser Basket, the Loss Threshold, the Purchaser Deductible and the Purchaser Cap) and indemnification pursuant to Section 11.01(afor the first $5 million of Special Losses shall not be counted for purposes of determining whether the Purchaser Cap has been exceeded and (iii) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, Special Losses exceeding $5 million (and then only to the extent that: such Special Losses exceed $5 million) shall be counted for purposes of determining whether the Purchaser Cap has been exceeded (i) with respect to any claim but, for indemnification attributable the avoidance of doubt, shall not be subject to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure SchedulePurchaser Basket, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Loss Threshold or the General Threshold, as applicable, Purchaser Deductible). The total aggregate amount of liability of the Shareholder for Purchaser Losses shall be payable by Seller pursuant limited to a claim for indemnification.
$25 million (c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Partythe "Purchaser Cap"), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party the Surviving Obligations (other than Special Losses in excess of $5 million), the Additional Surviving Obligations and the Surviving Representations shall not be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimPurchaser Cap.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
Samples: Stock Purchase Agreement (CNF Inc)
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, a Party’s obligation to indemnify, defend and hold the Buyer Indemnified Parties and the Seller Indemnified Parties, as applicable, harmless under this Article IX shall be limited as follows:
(a) The maximum amount no amounts of indemnity shall be payable pursuant to Section 9.1(a) (other than Buyer Losses that arising out of or relating to representations and warranties of the Company contained in Section 2.13 (Tax Returns; Taxes) or Section 2.15 (Licenses and Permits) or the Fundamental Representations) or Section 9.1(g) to the Buyer Indemnified Parties are entitled to recover unless (i) such claim (or series of related claims arising from Seller the same underlying facts, event or circumstances) involves Buyer Losses (excluding Buyer Losses described in Section 9.5(f)) in excess of $50,000 and (ii) the aggregate of all Buyer Losses (excluding Buyer Losses described in Section 9.5(f)) in respect of claims for indemnity pursuant to Section 11.01(a9.1(a) (other than as a result Buyer Losses arising out of breaches or relating to representations and warranties of Seller the Company contained in Section 2.13 (Tax Returns; Taxes) or Section 2.15 (Licenses and Permits) or the Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by SellerSection 9.1(g) shall not exceedfor which the Sellers would, but for this Section 9.5, be liable exceeds on a cumulative basis $2,000,000 (the “Deductible”), in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the which case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant recover only the amount of such Buyer Losses in excess of the Deductible; provided, that this clause (a) shall not apply to Section 11.01(a) with respect Buyer Losses arising out of or relating to any claim for indemnification pursuant to Section 11.01(a) claims of fraud with respect to the breach representations and warranties expressly set forth in this Agreement;
(b) any indemnification obligation of a representation or warranty, the Sellers pursuant to this Article IX (other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”type described in Section 9.4(b); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant satisfied solely from the Indemnity Escrow Fund, and if the Indemnity Escrow Fund is insufficient to a claim for indemnification.
(c) If satisfy any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any such Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02Loss, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to then such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Loss shall remain unsatisfied and no Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity any such shortfall from the Sellers;
(c) except in respect the case of any one Buyer Loss or related group amounts of indemnity payable for Buyer Losses if recovery has already been obtained arising out of or relating to the breach or inaccuracy of the Fundamental Representations or claims of fraud with respect to the representations and warranties expressly set forth in this Agreement, in no event shall the aggregate amount of all indemnity required to be paid by the Sellers pursuant to Section 2.049.1 exceed the Indemnity Amount;
(d) in no event shall the aggregate amount of all indemnity required to be paid by the Sellers pursuant to Section 9.1 exceed the Purchase Price;
(e) the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by the Sellers pursuant to Section 9.1 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment actually recovered from any third party with respect thereto;
(f) the amount of indemnity payable pursuant to Section 9.1 with respect to any Buyer Loss shall be reduced (without duplication) to the extent such Buyer Loss is reflected on the Final Closing Statement;
(g) in any claim for indemnification under this Agreement, no Party shall be required to indemnify any Person for punitive or exemplary damages or any other Loss that is not reasonably foreseeable (other than any such punitive or exemplary damages or any other Loss awarded as a result of a Third Party Claim);
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate; provided, however, that notwithstanding the foregoing, no Indemnified Party shall be required to (i) take any action that could reasonably be expected to be materially detrimental to its reputation or its business, taken as a whole, or (ii) commence or initiate any action or otherwise make any claim against any then current customer or supplier of such Indemnified Party or of any of its Affiliates;
(i) subject to Section 9.5(a), the liability of the Sellers for Buyer Losses shall be considered in the aggregate and shall be determined on a cumulative basis so Buyer Losses incurred under Article IX shall be combined with all other Buyer Losses incurred under Article IX for purposes of determining limitations on liability, including the maximum liability amounts described above;
(j) to the extent permitted by Law, any indemnity payment or post-closing adjustment under Section 1.5 under this Agreement shall be treated as an adjustment to the Purchase Price for U.S. federal income tax purposes; and
(k) for purposes of determining the amount of any Loss arising from a breach of any representation or warranty contained in this Agreement (and for purposes of determining whether any such representation or warranty has been breached), the determination shall be made (i) net of any Tax benefit actually realized by the Indemnified Party and its Affiliates and that are attributable on a with and without basis to any such Losses and (ii) without regard to materiality, Material Adverse Effect, “except as would not reasonably be expected to be material to the Group Companies” or similar qualifications that may be contained therein (other than the words “Material Adverse Effect” as used in Section 2.8(b)).
Appears in 1 contract
Samples: Interest Purchase Agreement (Owens & Minor Inc/Va/)
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Losses that the in this Agreement, Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, an amount equal to $1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will make a claim against Seller for indemnification under this Agreement for Buyer Losses unless and until the aggregate amount of such Buyer Losses that exceeds One Hundred Thousand Dollars ($100,000) (the “Deductible”) in which event Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed may claim indemnification for Buyer Losses in excess of the total purchase price paid to SellerDeductible.
(b) Notwithstanding anything to the contrary contained in this Article XIset forth herein, (i) the liability of Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to or for any other claim by Seller under Section 11.01(a) with respect 11.1 of this Agreement shall not exceed the aggregate of Two Hundred Fifty Thousand Dollars ($250,000), except in the case of the Fundamental Representations. Notwithstanding anything to the breach contrary set forth herein, the maximum aggregate liability of a representation Seller and/or its Affiliates for indemnification or warranty, for any other than a Seller Fundamental Representation, only if, and then only to claim by Buyer under Section 11.2 of this Agreement shall not exceed the extent thataggregate of Two Hundred Fifty Thousand Dollars ($250,000) for or in respect of services or liabilities incurred by Southern: (i) with respect to the recapture of any claim payment made under, or for indemnification attributable any violation of, Medicare, Medicaid, Blue Cross, and CHAMPUS/TRICARE or claims or cost reports filed by Southern thereunder, or to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”)be filed; and or (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss other claim or related group liability relating to any period prior to Closing, except in the case of the Fundamental Representations. The limitations contained in this Section 11.6 shall not apply to any indemnification claims arising under Section 11.1(i) or Section 11.2(i) as a result of any Actual Fraud of Buyer Losses if recovery has already been obtained pursuant to Section 2.04or Seller, respectively.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sunlink Health Systems Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount of Buyer Sellers and Shareholders shall only be liable for Purchaser Losses arising hereunder solely to the extent that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not any such Purchaser Losses exceed, in the aggregate, an amount equal to One Hundred Thousand Dollars ($1,000,000. Without limiting the foregoing, except in the case of fraudulent misrepresentation by Seller, in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a100,000) exceed the total purchase price paid to Seller.
(b) Notwithstanding anything to the contrary contained in this Article XI, (i) the Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 11.01(a) with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the breach of a representation or warranty, other than a Seller Fundamental Representation, only if, and then only to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the amount of the Repurchase Reserve as of the Closing Date (the “Repurchase Threshold”"SAI Basket Amount"); and (ii) with respect to all other claims for indemnification pursuant to Section 11.01(a), the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, shall be payable by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party Purchaser Losses arising under or pursuant to Sections 5.8(c) or 8.1 (a), (c) and (d) of this Agreement, arising under or incurred in connection with any of the matters listed on Exhibit 1.10(g) hereto, or arising out of or relating to any of the pending, threatened or other claims identified on Annex 3.9 to the Sellers Disclosure Letter shall not be required subject to institute any legal proceeding against any third Person. The the SAI Basket Amount, nor shall the amount of any Buyer such Purchaser Losses be included with other Purchaser Losses in determining whether such SAI Basket Amount has been reached.
(b) The indemnification obligations of the Sellers and Shareholders hereunder shall not exceed in the aggregate Three Million Dollars ($3,000,000) (the "Sellers' Cap Amount"); provided, however, that Purchaser Losses arising under or Seller Losses subject pursuant to indemnification Sections 5.8(c) or 8.1 (a), (c) and (d) of this Agreement, arising under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries incurred in connection with any of the facts giving rise matters listed on Exhibit 1.10(g) hereto, or arising out of or relating to any of the pending, threatened or other claims identified on Annex 3.9 to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party Sellers Disclosure Letter shall refund not be subject to the Indemnifying Party Sellers' Cap Amount and there shall be no limitation on the amount indemnification obligations of the Sellers with respect to Purchaser Losses arising under or pursuant to such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimprovisions.
(dc) No Buyer Indemnified Party For purposes of the indemnification obligations of the Sellers under this Article 8 and the applicable representations and warranties of the Sellers and Shareholders set forth in Article 3 hereof (but not for purposes of determining the satisfaction of the conditions set forth in Section 6.2(a) and (b) hereof), a Purchaser Loss or series of related Purchaser Losses shall be entitled deemed to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer have a Material Adverse Effect on the Business if such Purchaser Loss or series of related group Purchaser Losses exceeds Twenty Thousand Dollars ($20,000); provided, however, that for purposes of Buyer Losses if recovery has already been obtained pursuant determining the satisfaction of the SAI Basket Amount under Section 8.5(a), all representations, warranties, covenants, agreements or undertakings referred to in Section 2.048.1 (b) and (c) hereof shall be read so as to exclude therefrom the term "material" (or similar works of like import) and the effect thereof under this Article 8.
Appears in 1 contract
Samples: Asset Purchase Agreement (Healthcare Recoveries Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein:
(a) The maximum amount Except with respect to Purchaser Losses arising under Sections 9.1(i) and 9.1(j), which shall be recoverable to the extent such Losses in the aggregate exceed $10,000, none of Buyer Losses that the Buyer Purchaser Indemnified Parties are shall be entitled to recover from the Seller pursuant Indemnifying Parties and none of the Seller Indemnified Parties shall be entitled to recover from the Purchaser Indemnifying Parties unless and until the total of all Seller Losses or Purchaser Losses, as the case may be, with respect to any inaccuracy or breach of any such representations or warranties or breach of or default in the performance of any covenants, undertakings or other agreements, whether such claims are brought under this Section 11.01(a) (other than as a result of breaches of Seller Fundamental Representations9 or otherwise, breaches of Section 4.15 (Mortgage Business Compliance) or breaches resulting from fraudulent or intentional misrepresentations by Seller) shall not exceed, in the aggregate, $250,000 (the "Deductible Amount") and then only to the extent of such excess. In no event shall the aggregate liability of the Seller Indemnified Parties with respect to Purchaser Losses or the Purchaser Indemnified Parties with respect to Seller Losses exceed $10,000,000 (the "Cap Amount"). Notwithstanding the foregoing, the provisions of the immediately preceding sentence shall not apply to: (i) Purchaser Losses arising under or pursuant to any Seller Surviving Representations and/or Seller Surviving Obligations, Sellers Losses arising under or pursuant to any Purchaser Surviving Representations and/or Purchaser Surviving Obligations, or as a result of fraud or (ii) the Assumed Liabilities, the Excluded Assets and the Excluded Liabilities, (iii) any Purchaser Losses or Seller Losses arising out of any intentional breach of any covenant contained in this Agreement or any Purchaser Ancillary Document or Seller Ancillary Document, (iv) the payment of the Adjustment, or (v) any Purchaser Losses arising out of breach of the representations and warranties set forth in Sections 3.13, 3.15 and 3.16.
(b) The amount which an Indemnifying Party is required to pay to, for, or on behalf of any other party pursuant to this Section 9 shall be reduced (including, without limitation, retroactively) by any insurance proceeds actually recovered by or on behalf of such Indemnified Party and other amounts paid by any other person in reduction of the related indemnifiable loss (the "Indemnifiable Loss"). Amounts required to be paid, as so reduced, are hereafter sometimes called an "Indemnity Payment". If an Indemnified Party shall have received or shall have paid on its behalf an Indemnity Payment in respect of an Indemnifiable Loss and shall subsequently receive directly or indirectly insurance proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnified Party shall promptly pay to the Indemnifying Party a sum equal to the amount of such insurance proceeds or other amounts provided the same does not exceed an amount equal to $1,000,000the payment actually made by the Indemnifying Party. Without limiting the generality of the foregoing, except the Sellers' indemnification obligations with respect to breaches of the representations and warranties contained in Section 3.5 hereof shall be reduced or eliminated to the case of fraudulent misrepresentation extent that Purchaser recovers under the title insurance policies referred to in Section 6.1(d) for the facts giving rise to such breach, and Purchaser shall, diligently pursue such recovery prior to requiring an indemnification payment by Seller, Sellers in no event will the aggregate amount of Buyer Losses that the Buyer Indemnified Parties are entitled to recover from Seller pursuant to Section 11.01(a) exceed the total purchase price paid to Sellerrespect thereof.
(bc) Notwithstanding anything to the contrary contained in this Article XIherein, (i) the Buyer Indemnified Parties shall be entitled to Sellers' indemnification pursuant to Section 11.01(a) obligations with respect to any claim for indemnification pursuant to Section 11.01(a) with respect to the a breach of a representation or warranty, other than and warranty contained in Section 3.5(a) relating to title to a Seller Fundamental Representation, only if, and then only particular parcel of Real Property shall be limited to the extent that: (i) with respect to any claim for indemnification attributable to the Company’s repurchase obligations under the contracts identified on Section 11.05(b) of the Disclosure Schedule, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplication) exceed an amount equal to the maximum amount of the Repurchase Reserve title insurance coverage obtained on such parcel as contemplated by Section 6.1(d) regardless of the Closing Date (the “Repurchase Threshold”); whether such indemnification obligations relate to a matter covered under such title insurance, as contemplated by Section 9.5(b) above and (ii) the Sellers' indemnification obligations with respect to all other claims for indemnification pursuant to Purchaser Losses arising under Section 11.01(a)3.18, the aggregate Buyer Losses to all Buyer Indemnified Parties (without duplicationSection 9.1(f) exceed $75,000 (the “General Threshold”), whereupon only such amounts in excess of the Repurchase Threshold or the General Threshold, as applicable, and 9.1(k) shall be payable governed solely and exclusively by Seller pursuant to a claim for indemnification.
(c) If any Buyer Losses or Seller Losses sustained by an Indemnified Party are covered by an insurance policy, or an indemnification, contribution, or similar obligation Section 9.6 and Purchaser shall have no other right of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding indemnification against any third Person. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 or Section 11.02, as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied Sellers with respect to such recoveries and out-of-pocket costs and expenses of Purchaser Losses regardless whether such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 or Section 11.02, as applicable, such Indemnified Party shall refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claimother rights may exist.
(d) No Buyer Indemnified Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity in respect of any one Buyer Loss or related group of Buyer Losses if recovery has already been obtained pursuant to Section 2.04.
Appears in 1 contract
