Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1. (b) Notwithstanding any other provision of this Article IX: (i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing. (ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price. (iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price. (c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose. (d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise. (e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Algonquin Power & Utilities Corp.), Asset Purchase Agreement (Atmos Energy Corp), Asset Purchase Agreement (Atmos Energy Corp)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (Ai) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (Bii) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (xA) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (yB) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and oneon-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section Sections 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Algonquin Power & Utilities Corp.), Asset Purchase Agreement (Atmos Energy Corp), Asset Purchase Agreement
Limitations on Indemnification. (a12.4.1. Seller shall not be liable to the Buyer Indemnified Parties in respect of any indemnification under Section 12.2(c) A Party may assert a claim for indemnification hereunder only and Section 12.2(d) except to the extent that the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration aggregate Losses of the applicable survival period with respect to Buyer Indemnified Parties under such Sections exceeds Two Hundred Fifty Thousand Dollars ($250,000) (the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii"BASKET AMOUNT"), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitledevent, subject to Section 9.4(b)(ii)12.4.2 below, to indemnification Seller shall be liable for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% the Basket Amount. Buyer shall not be liable to the Seller Indemnified Parties in respect of any indemnification under Section 12.3(c) and Section 12.3(d) except to the extent that the aggregate Losses of the Purchase Price. All Indemnifiable Losses arising Seller Indemnified Parties under such Sections exceeds the Basket Amount, in which event, subject to Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii)12.4.2 below, neither Seller nor Buyer shall be required to make payments liable for indemnification all such Losses in excess of the Basket Amount.
12.4.2. Buyer acknowledges and agrees that the maximum aggregate liability of Seller pursuant to Section 9.2(a)(i12.2(c) or and Section 9.2(b)(i), respectively, in an aggregate amount 12.2(d) to the Buyer Indemnified Parties and any third parties for any and all Losses in excess of twelve the Basket Amount shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000); provided, however, nothing in this Section 12.4.2 shall be construed to constitute a waiver or limitation of any claims by Buyer based on fraud. Seller acknowledges and one-half percent (12.5%) agrees that the maximum aggregate liability of the Purchase Price.
(iii) The limitations specified in Buyer pursuant to Section 9.4(b)(i12.3(c), Section 12.3(d) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%12.3(e) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability Indemnified Parties and any implied warranty of fitness third parties for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty and all Losses in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost excess of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law Basket Amount shall not exceed Seven Hundred Fifty Thousand Dollars (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors$750,000); provided, that the use however, nothing in this Section 12.4.2 shall be construed to constitute a waiver or limitation of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity claims by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsbased on fraud.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (STC Broadcasting Inc), Asset Purchase Agreement (STC Broadcasting Inc)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only Notwithstanding anything in this Agreement to the extent the Indemnitee gives notice of such claim contrary, other than for fraud, and subject to the Indemnifying Party in accordance with this Section 9.3 prior to the expiration of the applicable survival period with respect to the representation12.03 (including Section 12.03(e)) and Section 12.04), warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable the cumulative indemnification obligations of the Members for all Group Warranty Breaches and Member Warranty Breaches (except for any inaccuracy or breach of the Fundamental Representations included in Article 4, the Special Representations or the representations and warranties in Section 4.06(d)), in the aggregate, exceed $15,000,000 (the “Business Cap”), (ii) in no event shall the cumulative indemnification obligations of the Members pursuant to Section 9.2(a)(i12.02(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(iiii)(z) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of 12.02(b), except for any inaccuracy or breach of any of the representations and warranties in Section 5.14.06(d) or Section 4.15 (Taxes) with respect to federal, 5.2state and local income Taxes, 5.8in the aggregate, 5.13exceed $190,000,000 (the “Cap”), 5.17, 6.1, 6.2, (iii) except with respect to breaches of the covenants and agreements made or 6.5, but in no case shall either Seller or Buyer to be required to make payments for indemnification performed pursuant to Section 9.2(a)(i7.04 (which shall only be paid directly by the applicable Principal(s)), in no event shall the indemnification obligations of the Members pursuant to Section 12.02(a) and Section 12.02(b), (x) in the aggregate, exceed the aggregate Closing Cash Consideration (including any adjustments pursuant to Section 2.12), plus any Earn-Out Amount(s) actually paid in accordance with Section 2.03(b) (including by issuance of Qualified MSG Stock or Qualified Successor Stock in accordance with Section 2.03(b)), plus any distributions from the Purchase Price Adjustment Escrow Fund received by the Members (or the Member Representative on behalf of the Members) pursuant to the terms of this Agreement, or, (y) with respect to any individual Member, exceed an amount equal to (A) the Purchase Price plus any Earn-Out Amount(s) actually paid in accordance with Section 2.03(b) (including by issuance of Qualified MSG Stock or Qualified Successor Stock in accordance with Section 2.03(b)), multiplied by (B) such Member’s Holdings Allocation Percentage. For the avoidance of doubt, with respect to the foregoing clause (iii)(y), irrespective of whether a Member delivers a Letter of Transmittal to the Member Representative, the limitation on indemnification of a Parent Indemnitee with respect to the Members shall be calculated as if such Member had submitted a Letter of Transmittal and such Member had received its allocable portion of the Purchase Price (and any Earn-Out Amount(s) actually paid in accordance with Section 2.03(b) (including by issuance of Qualified MSG Stock or Qualified Successor Stock in accordance with Section 2.03(b)) multiplied by such Member’s Holdings Allocation Percentage), and in the event of an indemnification obligation of such Member, the Member Representative shall pay the applicable amount out of the proceeds with respect to such Member held by the Member Representative to the applicable Parent Indemnitee notwithstanding the failure to receive such Letter of Transmittal but otherwise subject to the limitations on indemnification set forth in this Agreement. For the avoidance of doubt, with respect to this Section 12.03, the value of the Qualified MSG Stock or Qualified Successor Stock will be equal to the value attributed at the time of issuance pursuant to Section 2.03(b).
(b) With respect to indemnification of Parent Indemnitees by the Members for Group Warranty Breaches and Member Warranty Breaches pursuant to Section 12.02(a)(i) and Section 12.02(b)(i), other than for fraud or for the inaccuracy or breach of the Fundamental Representations, the Special Representations or the representations and warranties in Section 4.06(d), the Members shall not be liable (i) for any Group Warranty Breaches or Member Warranty Breaches with respect to which the aggregate Damages incurred by the Acquired Entities and their Subsidiaries, collectively, when taken together with their aggregate Damages with respect to any related Group Warranty Breach(es) or Section 9.2(b)(iMember Warranty Breach(es), respectivelydo not amount to more than $35,000 (such related Group Warranty Breach(es) or Member Warranty Breach(es) that do not exceed in the aggregate $35,000, a “De Minimis Breach”) (for the avoidance of doubt, solely for purposes of determining whether Damages exceed $35,000 for determining a De Minimis Breach, and without taking into consideration the fact that the Damages incurred by the Parent Indemnitees may have been less in an respect of any such Group Warranty Breaches or Member Warranty Breaches) or (ii) unless the aggregate amount of Damages of Parent Indemnitees with respect to all Group Warranty Breaches or Member Warranty Breaches, other than De Minimis Breaches, exceeds $1,000,000 (the “Deductible”) and then only for amounts of Damages in excess of one hundred percent (100%) of the Purchase PriceDeductible.
(c) Notwithstanding anything contained in this Agreement With respect to the contraryindemnification by Parent for Parent Breaches pursuant to Section 12.02(c)(i), except other than for fraud or for the representations and warranties expressly contained in Article V and inaccuracy or breach of the Seller Disclosure SchedulesFundamental Representations (i) Parent shall not be liable (A) for any Parent Warranty Breaches for which the Damages with respect thereto, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including when taken together with the Damages with respect to Sellerany related Parent Warranty Breaches, do not amount to more than $35,000 (such Parent Warranty Breaches that do not exceed $35,000, a “Parent De Minimis Breach”) or (B) unless the Businessaggregate amount of Damages with respect to all Parent Warranty Breaches, other than Parent De Minimis Breaches, exceeds the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement)Deductible, and Seller hereby disclaims then only for amounts of Damages in excess of the Deductible, and (y) the maximum liability for all Parent Warranty Breaches (except for any other representations inaccuracy in or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including breach of the implied warranty of merchantability Fundamental Representations) shall not exceed the Business Cap and any implied warranty of fitness (z) the maximum liability for a particular purposeall Parent Breaches shall not exceed the Cap.
(d) In For purposes of indemnification under this Article 12, (i) each of the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreementthat contain any qualifications as to materiality, constitutes a Material material or Xxxxx Xxxxxxxx Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller Effect (or any correlative terms) (other than such qualifications in Section 4.04(iv), Section 4.07(a), Section 4.08(a), Section 4.08(b), Section 4.16(a), the last sentence of its Affiliates with respect Section 4.24, Section 6.04(iv), the definition of (except as provided in subclause (iv) thereof) and references to “Material Contracts” and for the avoidance of doubt, any dollar thresholds in Section 4.09 or Section 4.10(a)), each of which shall not be disregarded) and (ii) the representation and warranty in Section 4.05(a)(i) that contains qualification as to de minimis failures, shall be deemed to have been given as though there were no such breachqualifications in determining the Damages attributable to any such breach or inaccuracy and in determining whether there has been any breach of, under this Article IX or otherwiseinaccuracy in, any representations or warranties hereunder.
(e) In addition If a Parent Indemnitee becomes entitled to indemnification pursuant to Sections 12.02(a) or 12.02(b), except with respect to breaches of the covenants and agreements made or to be performed pursuant to Section 7.04 (which shall only be paid directly by the applicable Principal(s)), such indemnification payment will be made first out of the Indemnity Escrow Fund and, in the event the amount of the Indemnity Escrow Fund is not sufficient to satisfy such entitlement in full, in cash by the Indemnitor (subject to the other limitations terms of this Article 12)); provided, solely in the event the amount of the Indemnity Escrow Fund is not sufficient to satisfy such entitlement in full, that in the case of an Indemnitor that is a Rollover Holdco Member (a “Rollover Holdco Member Indemnitor”), at such Rollover Holdco Member Indemnitor’s option (upon written notice to the Parent Indemnitee of the specifics of such election (including whether to transfer Class A Holdings Interests and/or Preferred Holdings Interests or a combination thereof, pursuant to clauses (ii) and (iii) below) no later than ten (10) days after incurrence of such indemnification obligation is finally determined to be due and owing, or if such election is not made within such period, upon Parent’s option), such indemnification obligation shall be payable in full pursuant to one or more of the following payment methods (subject to the terms herein): (i) payment of cash to the Parent Indemnitee by such Rollover Holdco Member Indemnitor, (ii) Rollover Holdco shall (x) Transfer (as defined in the A&R Holdings LLC Agreement) to Parent Class A Holdings Interests (valued at the Per Class A Holdings Interest Value in respect of such indemnification obligation) and/or Preferred Holdings Interests (valued at the Stated Early Put Value (as defined in the A&R Holdings LLC Agreement)) or a combination thereof, free and clear of all Liens in accordance with the terms of Article VI of the A&R Holdings LLC Agreement applicable to such Transfer, and (y) cancel for no consideration the Rollover Holdco Class A Common Units or Rollover Holdco Preferred Units (as applicable) corresponding to such Attributable Class A Common Units or Attributable Preferred Units (as applicable) of such Rollover Holdco Member, (iii) (x) Rollover Holdco shall distribute a number of Class A Holdings Interests (valued at the Per Class A Holdings Interest Value in respect of such indemnification obligation) and/or Preferred Holdings Interests (valued at the Stated Early Put Value (as defined in the A&R Holdings LLC Agreement)) or a combination thereof to such Rollover Holdco Member Indemnitor in full redemption of an equivalent number of Rollover Holdco Class A Units or Rollover Holdco Preferred Units (as applicable) held by such Rollover Holdco Member Indemnitor and concurrently (y) such Rollover Holdco Member Indemnitor shall Transfer such Class A Holdings Interests or Preferred Holdings Interests (as applicable), free and clear of all Liens, to Parent in accordance with the terms of Article VI of the A&R Holdings LLC Agreement applicable to such Transfer, (iv) with respect to a Direct Rollover Member, such Direct Rollover Member shall Transfer to Parent Class A Holdings Interests (valued at the Per Class A Holdings Interest Value in respect of such indemnification obligation), free and clear of all Liens in accordance with the terms of Article VI of the A&R Holdings LLC Agreement applicable to such Transfer, and/or (v) assignment of amounts distributable to such Rollover Holdco Member Indemnitor under the A&R Holdings LLC Agreement (including under Section 2.1 therein) to such Parent Indemnitee (such principal amount of indemnification payable by assignment of distributions, the “Principal Amount”), with interest accruing on such Principal Amount at a rate of five percent (5%) per annum, compounded semiannually from the date such indemnification obligation is finally determined to be due and payable; provided, further, that if the entire Principal Amount is not paid prior to the earlier of (x) the second anniversary of the date such indemnification obligation is finally determined to be due and payable, and (y) in the case of a finally determined indemnification obligation, the date such Rollover Holdco Member Indemnitor Transfers (as defined in the A&R Holdings LLC Agreement) any of his, her or its Class A Holdings Interests, the entire amount of such obligation, including the Principal Amount (to the extent unpaid) and any interest accrued as of such date, shall be due and payable by the Rollover Holdco Member Indemnitor by either of the methods set forth in clauses (i), (ii) and (iii) above (such payment to be made in the sole discretion of the Parent Indemnitee), and/or the Parent Indemnitee shall be entitled to set off and withhold any amounts owed or payable to such Rollover Holdco Member Indemnitor (whether under this Article IXAgreement or another Transaction Document, other than an Employment Agreement) in respect of such outstanding amount. Notwithstanding anything to the contrary contained in this Agreement, with respect to any claim for indemnification regarding any breach under Section 12.02(a) or 12.02(b) other than breaches of any representation the covenants and warranty set forth in agreements made or to be performed pursuant to Section 5.12: 7.04 (i) which shall only be paid directly by the applicable Principal(s)), the Parent Indemnitee shall be entitled to collect the entire amount of his, her or its Damages from the Indemnity Escrow Fund without regard to the extent applicable, Seller’s indemnification obligation shall be limited to the cost Members’ pro rata share of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law Indemnity Escrow Fund (including engineering or institutional controls) based on the industrial use of the relevant facility such Member’s Holdings Allocation Percentage or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsotherwise).
Appears in 3 contracts
Samples: Transaction Agreement (MSG Entertainment Spinco, Inc.), Transaction Agreement (MSG Entertainment Spinco, Inc.), Transaction Agreement (Madison Square Garden Co)
Limitations on Indemnification. (a) A Party may assert a claim The indemnification provided for indemnification hereunder only in Sections 9.01 and 9.02 shall be subject to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IXfollowing limitations:
(i) Except as provided in Section 9.4(b)(iii), in no event The Stockholders shall either Party not be liable obligated to pay any amounts for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items under this Article IX arising out of the same factsany Losses based upon, events arising out of or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) otherwise in respect of each individual item where any inaccuracy or breach disclosed in writing to GRS and specifically waived in writing by GRS prior to the Indemnifiable Loss relating thereto Closing.
(ii) Neither GRS, the Company nor the Stockholders shall be obligated to pay any amounts for indemnification under this Article IX, except those based upon, arising out of or otherwise in respect of Sections 3.02, 3.21, 3.28, 5.22, 5.29, 9.01 (ii) and (iii), 11.01 and 11.02 and Article IV hereof (the "Basket Exclusions"), until the aggregate indemnification payments, exclusive of the Basket Exclusions, equals one percent (1%) of the Purchase Price (the "Basket Amount"), whereupon GRS, or the Company and Stockholders, as the case may be, shall be obligated to pay any indemnification payments, including the Basket Amount, in full. It is equal to expressly understood that the Basket Amount shall serve as a "trigger" for indemnification and not as a "deductible" (for example, if the indemnity claims for which GRS or greater than the Stockholders would, but for the provisions of this subparagraph (ii), be liable is in the aggregate amount of $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 21% of the Purchase Price is $70,000, the Stockholders would then be liable for the entire $100,000 and (ynot just $30,000). This Section 9.04(ii) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall will not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor which any other Person is making party had actual Knowledge at any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller time prior to the Closing that date on which such representation and warranty is made or any intentional breach by Seller any party of any representation covenant or warranty in this Agreementobligation, individually and GRS or in the aggregate with any other breaches of Seller’s representations Stockholders, as the case may be, will be jointly and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates severally liable for all damages with respect to such breach, under this Article IX or otherwisebreaches.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 3 contracts
Samples: Stock Purchase Agreement (General Roofing Services Inc), Stock Purchase Agreement (General Roofing Services Inc), Stock Purchase Agreement (General Roofing Services Inc)
Limitations on Indemnification. (a) A Notwithstanding the provisions of this ARTICLE X, (i) no Acquiror Indemnified Party may assert shall be entitled to indemnification pursuant to Section 10.2(a)(i) unless and until the amount of Losses incurred by such Acquiror Indemnified Party that are the subject of a claim (or any series of related claims) exceeds $50,000 (the “De Minimus Amount”) and such Acquiror Indemnified Party shall only be entitled to indemnification pursuant to Section 10.2(a)(i) to the extent the aggregate amount of all Losses incurred by all Acquiror Indemnified Parties for which such Acquiror Indemnified Parties are entitled to indemnification hereunder pursuant to Section 10.2(a)(i) exceeds $3,550,000 (the “Indemnification Deductible”), and then only to the extent the Indemnitee gives notice of such claim excess, (ii) in no event shall the aggregate amount to be paid as indemnification pursuant to Section 10.2(a)(i), (iv), (v) and (vii) exceed $35,500,000 (the Indemnifying Party in accordance with Section 9.3 prior to “Cap”). Seller’s aggregate liability under this ARTICLE X shall not exceed the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1Purchase Price.
(b) Notwithstanding the provisions of Section 10.4(a), (i) the De Minimus Amount and the Indemnification Deductible shall not apply with respect to Losses relating to breaches of the representations and warranties set forth in Company Fundamental Representations or Section 3.15 (Taxes); (ii) the Cap shall not apply with respect to Losses relating to indemnification pursuant to Section 7.4(a), Section 10.2(a)(ii), (iii), (vi), (viii) or (ix) or to breaches of the representations and warranties set forth in Company Fundamental Representations or Section 3.15 (Taxes); (iii) no Acquiror Indemnified Party shall be entitled to indemnification pursuant to Section 10.2(a)(iv) or (vii) unless and until the amount of Losses incurred by such Acquiror Indemnified Party that are the subject of a claim (or any series of related claims) exceeds $250,000, and then only to the extent of such excess; (iv) no Acquiror Indemnified Party shall be entitled to indemnification pursuant to Section 10.2(a)(v) unless and until the amount of Losses incurred by such Acquiror Indemnified Party that are the subject of a claim (or any series of related claims) exceeds an amount equal to the sum of (1) the reserve for the applicable workers compensation claim set forth on Schedule 10.4(b), to the extent such reserve is reflected in Final Net Working Capital plus (2) $250,000, and then only to the extent of such excess; (v) no Acquiror Indemnified Party shall be entitled to indemnification pursuant to Section 10.2(a)(vi) until the aggregate amount of Losses incurred by the Acquiror Indemnified Parties that are indemnifiable pursuant to Section 10.2(a)(vi) exceeds $500,000, and then only to the extent of such excess; and (vi) with respect to any claim pursuant to Section 10.2(a)(iv) that is covered by a Seller Insurance Policy, Seller’s indemnification obligation with respect to such claim shall not exceed the amount of the deductible applicable to such claim under the related Seller Insurance Policy.
(c) Notwithstanding the provisions of this ARTICLE X, (i) no Seller Indemnified Party shall be entitled to indemnification pursuant to Section 10.2(b) unless and until the amount of Losses incurred by such Seller Indemnified Party that are the subject of such claim exceeds the De Minimus Amount and such Seller Indemnified Party shall only be entitled to indemnification to the extent the aggregate amount of all Losses incurred by all Seller Indemnified Parties for which such Seller Indemnified Parties are entitled to indemnification pursuant to Section 10.2(b) exceeds the Indemnification Deductible, and then only to the extent of such excess and (ii) in no event shall the aggregate amount to be paid as indemnification pursuant to Section 10.2(b) exceed the Cap; provided that the De Minimus Amount, the Indemnification Deductible and the Cap shall not apply with respect to Losses relating to indemnification pursuant to Section 7.4(i) or to breaches of the Acquiror Fundamental Representations. Acquiror’s aggregate liability under this ARTICLE X shall not exceed the Purchase Price.
(d) For purposes of determining whether a breach of any of the representations or warranties of Seller or Company has occurred and, if so, for purposes of calculating the amount of Losses relating to any breach of any of the representations or warranties, the representations and warranties in this Agreement, except for Section 3.7 (Financial Statements) and Section 3.9 (Absence of Certain Changes or Events), shall be read without giving effect to any qualifications or limitations as to “material,” “materiality,” and “Material Adverse Effect” contained in any such representations and warranties.
(e) No Indemnified Party will be entitled to indemnification to the extent of any Losses that a court of competent jurisdiction has determined by final judgment to have resulted from the bad faith, gross negligence or willful misconduct of the party seeking indemnification (provided that the bad faith, gross negligence or willful misconduct of Seller, Company or any of its Subsidiaries prior to the Closing shall not affect Acquiror Indemnified Parties’ indemnification rights).
(f) Notwithstanding any other provision of this Article IX:Agreement to the contrary, no Acquiror Indemnified Party shall be entitled to indemnification under this ARTICLE X for (i) any Losses to the extent such Losses are reflected in the Closing Date Working Capital Statement or (ii) punitive, consequential, indirect, incidental or special damages, except to the extent any such damages are received by a third party from an Indemnified Party.
(g) In determining the amount of any Losses for which the Indemnified Parties are entitled to assert a claim for indemnification, the amount of any such Losses will be determined after deducting therefrom (i) the value of any Tax benefit or Relief actually realized by any such Indemnified Parties arising out of or in connection with the incurrence of the Losses for which indemnity is sought, (ii) the amount of any insurance proceeds from a third-party insurer actually received by such Indemnified Parties in respect of such Losses, in each case net of costs and expenses incurred by such Indemnified Parties or their Affiliates (including any increase in premium resulting therefrom) and (iii) any other amounts actually received from a third party pursuant to indemnification, contribution or otherwise in respect of any Losses. All Indemnified Parties shall use commercially reasonable efforts to mitigate all Losses for which such Indemnified Parties are entitled or may be entitled to indemnification under this ARTICLE X. In the event that any insurance proceeds, Tax benefits, Relief or other amounts from any third party are actually recovered or realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, Tax benefits, Relief or other amounts relate, a portion of such indemnification payment equal to the amounts so recovered or realized shall promptly be refunded to the Indemnifying Party.
(h) No Indemnified Party shall be entitled to recover any amount relating to any matter arising under one provision of this Agreement to the extent such Indemnified Party (or other Acquiror Indemnified Parties in the event of an Acquiror Indemnified Party, or other Seller Indemnified Parties in the event of a Seller Indemnified Party) had already recovered such amount with respect to such matter pursuant to that or other provisions of this Agreement.
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for Notwithstanding any item or items arising out other provision of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained no Acquiror Indemnified Party shall be entitled to indemnification under this ARTICLE X in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty respect of any kind Losses which occur or nature whatsoever (including with respect to Seller, are increased as a result of the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agentsentry into force of, or representativesany change in, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost any Law or any practice of the investigation or remediation of such contamination, Seller shall not be responsible for any such Governmental Authority (including any increase in coststhe Tax rates or any new Tax or any withdrawal of Relief), even if such entry into force or change has retroactive effect.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Pinafore Holdings B.V.), Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Limitations on Indemnification. (a) A No amount shall be payable to an Indemnified Party may assert a in satisfaction of any claim for indemnification hereunder only pursuant to Section 13.1(a) or 13.2(a), as applicable, for which the extent the Indemnitee gives notice aggregate amount of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration Losses of the applicable survival period Indemnified Party arising therefrom, together with respect to all related claims, is less than $50,000; provided, that the representation, warranty or covenant on which such claim is based, if any, limitation set forth in this Section 9.113.6(a) shall not apply unless and until the aggregate amount of all Losses of the Indemnified Party resulting from, arising out of or relating to breaches of representations and warranties contained in this Agreement exceeds the Deductible Amount.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either No claim may be made by an Indemnified Party be liable against an Indemnifying Party for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv13.1(a) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts13.2(a), events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000as applicable, unless and until the Indemnified Party has sustained aggregate Losses for which it is entitled to indemnification pursuant to Section 13.1(a) or Section 13.2(a), as applicable, in excess of all Indemnifiable $14,000,000 in the aggregate (the “Deductible Amount”) and then only to the extent such aggregate amount exceeds the Deductible Amount, provided, however, that the Deductible Amount shall not apply with respect to any Losses which are incurred resulting from, arising out of or suffered by relating to breaches of the Seller Fundamental Representations or the Buyer Indemnitees or Fundamental Representations, and none of such Losses shall count towards the Seller Indemnitees, respectively, exceeds 2% satisfaction of the Purchase Price, in which case Deductible Amount. The maximum aggregate recovery of the Buyer Indemnitees Indemnified Parties from the Indemnifying Parties pursuant to Section 13.1(a) or the Seller IndemniteesSection 13.2(a), as applicable, shall be entitlednot exceed an amount equal to $140,000,000 the (“Cap”), except with respect to breaches of the Seller Fundamental Representations or Buyer Fundamental Representations, which are subject to Section 9.4(b)(ii13.6(c), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in The maximum aggregate liability or recovery of all Buyer Indemnified Parties from all Seller Indemnifying Parties under this Agreement Article 13 or otherwise pursuant to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually including for Fraud, shall not exceed an amount equal to the Final Purchase Price actually received by the Sellers. The maximum aggregate liability or in the aggregate with any other breaches recovery of Seller’s representations and warranties in all Seller Indemnified Parties from all Buyer Indemnifying Parties under this Article 13 or otherwise pursuant to this Agreement, constitutes a Material Adverse Effectincluding for Fraud, no Buyer Indemnitees shall not exceed an amount equal to the Final Purchase Price actually received by the Sellers and the Sellers shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, no indemnification for Losses under this Article IX or otherwise.
(e) In addition to 13 by any Indemnified Party if such Liabilities are taken into account in the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach calculation of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation Net Working Capital. No Indemnified Party shall be limited entitled to be indemnified, paid or reimbursed more than once for the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costssame Losses.
Appears in 3 contracts
Samples: Asset Purchase Agreement (DISH Network CORP), Asset Purchase Agreement (SPRINT Corp), Asset Purchase Agreement (T-Mobile US, Inc.)
Limitations on Indemnification. (a) A An Indemnifying Party may assert a claim shall not have any liability under Section 8.2(ii), Section 8.2(iii), Section 8.3(ii) or Section 8.3(iii) (except with regard to Buyer’s obligations to pay the Purchase Price and the parties’ respective obligations to pay for indemnification hereunder any amounts under Section 6.4) unless the aggregate amount of Losses incurred by the Indemnified Party and indemnifiable thereunder arising out of, resulting from, related to or associated with the breach of the representations, warranties, covenants or agreements exceeds $192,000 (the “Basket”) and, in any event (except with regard to Buyer’s obligations to pay the Purchase Price and the parties’ respective obligations to pay for any amounts under Section 6.4), only to the extent the Indemnitee gives notice aggregate amount of such claim to the Indemnifying Party Losses in accordance with Section 9.3 prior to the expiration excess of the applicable survival period with respect Basket shall be indemnifiable hereunder; provided, however, that the Basket shall not apply to any breach of the representation, warranty Specified Indemnity Item or covenant on which such claim is based, if any, set forth in to any liability under Section 9.18.2(i) or Section 8.3(i).
(b) Notwithstanding any other provision of Subject to this Article IX:
(i) Except as provided in Section 9.4(b)(iii)8.6, in no event Indemnified Party shall either Party be liable make a claim for indemnification pursuant to this Agreement for Losses incurred by such Indemnified Party arising out of, resulting from, related to or associated with the breach of the representations, warranties, covenants or agreements contained in this Agreement (other than a claim with respect to breach of any Specified Indemnity Item or any liability under Section 9.2(a)(i), Section 9.2(a)(iv8.2(i) or Section 9.2(b)(i8.3(i), for which this Section 8.6(b) hereof shall not apply) unless the amount of such Losses (Aexcluding Specified Indemnity Items or any liability under Section 8.2(i) or Section 8.3(i)) relating to such claim exceeds $500.00; provided, however, that at such time as an Indemnified Party makes a claim or claims for indemnification pursuant to this Agreement for Losses, excluding any Specified Indemnity Item or any liability under Section 8.2(i) or Section 8.3(i), in an aggregate amount exceeding the Basket, such threshold amount for any item or items arising out additional claims shall increase to $5,000, until the point that the aggregate amount of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is all such additional claims that are less than $100,000 and (B) 5,000 equals or exceeds $50,000, at which point all of such additional claims, together with all future claims in respect excess of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable500, shall be entitled, subject indemnified pursuant to Section 9.4(b)(ii), to indemnification for (x) 50% the terms of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingArticle 8.
(iic) Except as provided in Section 9.4(b)(iii), neither Neither Seller nor Buyer shall be required to make payments for indemnification pursuant to indemnify any person under Section 9.2(a)(i8.2(ii), Section 8.2(iii), Section 8.3(ii) or Section 9.2(b)(i), respectively, in 8.3(iii) (except with regard to Buyer’s obligations to pay the Purchase Price and the parties’ respective obligations to pay for any amounts under Section 6.4) for an aggregate amount of Losses exceeding:
(i) in excess of twelve and one-half percent (12.5%) the case of the Purchase Price.
(iii) The limitations specified Specified Indemnity Items or Excluded Liabilities, in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply the case of Seller, $9,600,000 in connection with Losses related to Indemnifiable Losses arising out of any the breach of any such Specified Indemnity Items or such Excluded Liabilities; and
(ii) in the case of all other representations, warranties, covenants or agreements, $1,920,000 in connection with Losses related to the representations and warranties in Section 5.1breach of any such representations, 5.2warranties, 5.8, 5.13, 5.17, 6.1, 6.2, covenants or 6.5, but in no case shall either agreements of Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i)Parent and Buyer, respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In An Indemnifying Party shall not have any liability under Section 8.2(ii), Section 8.2(iii), Section 8.3(ii) or Section 8.3(iii) (except with regard to Buyer’s obligations to pay the event that Buyer proceeds Purchase Price) for any Losses unless an Indemnified Party shall have delivered to the Closing notwithstanding written notice from Seller Indemnifying Party a claim in accordance with Section 8.4 identifying such Losses (and stating in reasonable detail the basis of the claim for indemnification and the Section or Sections of this Agreement providing for such indemnification with regard to such Losses) prior to the Closing that termination of the applicable Survival Period.
(e) No Loss arising from a liability reflected on the Statement of Working Capital (as adjusted pursuant to any breach by Seller disputes) shall be subject to indemnification pursuant to Section 8.3.
(f) Notwithstanding anything to the contrary contained herein, if any Buyer Indemnified Party is entitled to indemnification under Section 8.3(ii) or Section 8.3(iii), such Buyer Indemnified Party shall be entitled to such indemnification in accordance with this Article 8 notwithstanding its assumption of any representation or warranty in this Agreement, individually or the Assumed Liabilities and obligations under Section 8.2(i) and notwithstanding anything to the contrary in the aggregate with Ancillary Agreement; provided, however, in no event shall any other breaches of Seller’s representations and warranties in this AgreementBuyer Indemnified Party be entitled to any duplicative recovery for such items, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect pursuant to such breach, under this Article IX Section 8.3(i) or otherwise.
(eg) In addition Notwithstanding anything to the other limitations set forth contrary herein, in no event shall Seller have any liability under this Agreement (including this Article IX, with respect 8) for any Losses relating to any a claim for indemnification regarding any breach the underlying facts of any representation and warranty set forth in Section 5.12: (i) which were known by Parent or Buyer on or prior to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsClosing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Renegy Holdings, Inc.), Stock Purchase Agreement (Acorn Factor, Inc.)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to To the extent the Indemnitee gives notice of such claim Partnership Indemnified Parties are entitled to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable indemnification for indemnification Losses pursuant to Section 9.2(a)(i), Section 9.2(a)(iv9.3(a) or Section 9.2(b)(i) hereof (A) other than for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal Losses related to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.14.6), 5.2Anadarko shall not be liable for those Losses unless the aggregate amount of Losses exceeds 1% of the sum of (i) the Cash Consideration, 5.8plus (ii) the dollar value of the Unit Consideration on the Closing Date, 5.13plus (iii) the dollar value of the GP Consideration on the Closing Date (with each general partner unit being deemed for this purpose to have the same value as a common unit) (the sum of (i), 5.17(ii) and (iii) being the “Aggregate Consideration”) (the “Deductible”), 6.1and then only to the extent of any such excess.
(b) In addition, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments the extent the Partnership Indemnified Parties are entitled to indemnification for indemnification Losses pursuant to Section 9.2(a)(i) or Section 9.2(b)(i9.3(a), respectivelyAnadarko shall not be liable for such Losses that exceed, in an aggregate amount in excess of one hundred percent (100%) the aggregate, 25% of the Purchase PriceAggregate Consideration less the Deductible.
(c) Notwithstanding anything contained in this Agreement Section 9.8(a) and (b), to the contraryextent the Partnership Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.3(b), except 9.3(c), 9.3(d), 9.3(e), or 9.3(f) or for claims arising from fraud, Anadarko shall be fully liable for such Losses without respect to the representations and warranties expressly contained Deductible in Article V Section 9.8(a) and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreementlimitations in Section 9.8(b), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In To the event that Buyer proceeds extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(a), the Partnership shall not be liable for those Losses unless the aggregate amount of Losses exceeds, in the aggregate, the Deductible, and then only to the Closing notwithstanding written notice from Seller prior extent of any such excess. In addition, to the Closing extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(a), the Partnership shall not be liable for such Losses that any breach by Seller of any representation or warranty in this Agreementexceed, individually or in the aggregate with any other breaches aggregate, 10% of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwisethe Aggregate Consideration less the Deductible.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Notwithstanding Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date9.8(d), to the extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(b) or for claims arising from fraud, the Partnership shall be fully liable for such exacerbation increases Losses without respect to the cost of Deductible and the investigation or remediation of such contamination, Seller shall not be responsible for any such increase limitations in costsSection 9.8(d).
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (Western Gas Partners LP)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder pursuant to this Article X only to the extent the Indemnitee gives notice a Notice of Third Party Claim or Notice of Direct Loss, as applicable, with respect to such claim claim, to the Indemnifying Party in accordance with (i) for claims pursuant to Section 9.3 10.2(a)(ii) or Section 10.2(b)(ii), prior to the expiration of the applicable survival time period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.110.1; (ii) for claims pursuant to Section 10.2(a)(i) or Section 10.2(b)(i), within fifteen (15) months following the Closing Date; (iii) for claims pursuant to Section 10.2(a)(iv), within five years following the Closing Date; and (iv) for claims pursuant to Section 10.2(a)(v) or Section 10.2(a)(vi), within three years following the Closing Date. Any claim for indemnification by Buyer with respect to which a Notice of Third Party Claim or Notice of Direct Loss is received by Seller within the applicable time frame set forth in the foregoing sentence shall be deemed timely made regardless of whether Buyer has at such point begun to comply with its obligations pursuant to Section 10.2(c). Any claim for indemnification not made in accordance with Section 10.3 and the foregoing sentence by a Party on or prior to the applicable date set forth in Section 10.1 or this Section 10.4(a), and the other Party’s indemnification obligations with respect thereto, will be irrevocably and unconditionally released and waived.
(b) Notwithstanding any other provision of this Article IX:
X: (i) Except as provided in Section 9.4(b)(iiiSeller will not have any indemnification obligations for Indemnifiable Losses under Sections 10.2(a)(i), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i10.2(a)(ii), Section 9.2(a)(iv10.2(a)(iv), 10.2(a)(v), and 10.2(a)(vi) or Section 9.2(b)(i) hereof (A) for any individual item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate amount of all Indemnifiable such Losses which are incurred or suffered exceeds $5,000,000, and then only to the extent of such excess; and (ii) in no event will the aggregate indemnification to be paid by Seller under Sections 10.2(a)(i), 10.2(a)(ii), 10.2(a)(iv), 10.2(a)(v), and 10.2(a)(vi) exceed 25% of the Purchase Price. Notwithstanding the foregoing, (x) the limitations set forth in Sections 10.4(b)(i) and 10.4(b)(ii) will not apply to claims asserted by Buyer Indemnitees or for breaches of Sections 5.1, 5.2, 5.3(a), 5.7, 5.15, 5.16, and 5.17, (y) the aggregate indemnification to be paid by Seller Indemniteesunder Section 10.2(a)(ii) with respect to breaches of Sections 5.7 and 5.17, respectively, exceeds 2will not exceed 50% of the Purchase Price, in which case the Buyer Indemnitees or the less any other indemnification payments made by Seller Indemnitees, as applicable, shall be entitled, subject pursuant to Section 9.4(b)(iiSections 10.2(a)(i) and 10.2(a)(ii), and (z) the aggregate indemnification to indemnification for (xbe paid by Seller under Section 10.2(a)(ii) 50% with respect to breaches of all such Indemnifiable Losses up to 2Sections 5.1, 5.2, 5.3(a), and 5.16, will not exceed 100% of the Purchase Price Price, less any other indemnification payments made by Seller pursuant to Sections 10.2(a)(i) and 10.2(a)(ii).
(c) Notwithstanding any other provision of this Article X: (i) Buyer will not have any indemnification obligations for Indemnifiable Losses under Sections 10.2(b)(i) and 10.2(b)(ii) (A) for any individual item where the Loss relating thereto is less than $100,000 and (yB) in respect of each individual item where the Loss relating thereto is equal to or greater than $100,000, unless the aggregate amount of all such Indemnifiable Losses exceeds $5,000,000, and then only to the extent of such excess; and (ii) in excess of 2no event will the aggregate indemnification to be paid by Buyer under Sections 10.2(b)(i) and 10.2(b)(ii) exceed 25% of the Purchase Price. All Indemnifiable Losses arising Notwithstanding the foregoing, (x) the limitations set forth in Sections 10.4(b)(i) and 10.4(b)(ii) will not apply to claims asserted by Seller for breaches of Sections 6.1, 6.2, 6.3(a), and 6.6, and (y) the aggregate indemnification to be paid by Buyer under Section 9.2(a)(iv10.2(b)(ii) shall be deemed with respect to be a single item for purposes breaches of the foregoing.
(ii) Except as provided in Section 9.4(b)(iiiSections 6.1, 6.2, 6.3(a), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) 6.6 will not exceed 100% of the Purchase Price, less any other indemnification payments made by Buyer pursuant to Sections 10.2(b)(i) and 10.2(b)(ii).
(iiid) The limitations specified in Section 9.4(b)(i) No representation or warranty of either Party contained herein will be deemed untrue or incorrect, and Section 9.4(b)(ii) shall such Party will not apply be deemed to Indemnifiable Losses arising out have breached a representation, warranty, or covenant as a consequence of the existence of any breach of any of the representations and warranties in Section 5.1fact, 5.2circumstance, 5.8, 5.13, 5.17, 6.1, 6.2action, or 6.5event that is permitted to be taken by such Party under the terms of this Agreement, but or that is disclosed in no case shall either Seller this Agreement, any Schedule, or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase PriceExhibit hereto.
(ce) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedulesthis Agreement, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party Seller or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS. Any claims Buyer may have for breach of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty must be based solely on the representations and warranties of Seller set forth in this Agreement. In furtherance of the foregoing, except for the representations and warranties contained in this Agreement, individually Buyer acknowledges and agrees that none of Seller, any of its Affiliates or any other Person will have or be subject to any liability to Buyer or any other Person for, and Seller hereby disclaims all liability and responsibility for, any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Buyer or any of Buyer’s Representatives, including any confidential memoranda distributed on behalf of Seller relating to the aggregate with Purchased Assets or the Assumed Obligations or other publications or data room information provided to Buyer or Buyer’s Representatives, or any other breaches document or information in any form provided to Buyer or Buyer’s Representatives in connection with the sale of Sellerthe Purchased Assets, the assumption of the Assumed Obligations, and the transactions contemplated hereby (including any opinion, information, projection, or advice that may have been or may be provided to Buyer or Buyer’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Representatives by Seller or any of its Affiliates with Seller’s Representatives). BUYER HEREBY ACKNOWLEDGES THAT, EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN ARTICLE V, THE PURCHASED ASSETS ARE BEING PURCHASED ON AN “AS IS, WHERE IS” BASIS, WITH ALL FAULTS. Notwithstanding the foregoing, nothing contained in this Section 10.4(e) shall limit in any respect any remedy to such breach, under which any Party may be entitled in respect of any fraudulent breach of this Article IX Agreement or otherwise.
(e) In addition to other fraud by the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsParty.
Appears in 2 contracts
Samples: Asset Sale Agreement (ITC Holdings Corp.), Asset Sale Agreement (Interstate Power & Light Co)
Limitations on Indemnification. (a) A Party To the extent that the Partnership Indemnitees or the Western Indemnitees are entitled to indemnification for Damages pursuant to Section 8.2(a)(i) or Section 8.2(b)(i) (but not including Damages for breaches of Fundamental Representations or for breaches of the representations or warranties in Section 3.4(c) or Section 3.7(g)) or Section 8.1(a) (but not including Damages for breaches of Partnership Fundamental Representations), respectively, SPPR and Western, on the one hand, or the Partnership, on the other hand, as the case may assert be, shall not be liable for those Damages unless the aggregate amount of Damages exceeds $2,100,000 (the “Deductible”), and then only to the extent of any such excess; provided, however, that no indemnified party shall submit a claim for indemnification hereunder only to the extent indemnifying party unless (A) the Indemnitee gives notice Damages in respect of such claim (or series of related claims) exceed $50,000 (each such claim (or series of related claims) with Damages that do not exceed $50,000, a “De Minimis Claim”), or (B) the amount of all De Minimis Claims exceeds $250,000 in the aggregate, after which all De Minimis Claims shall be applied to the Indemnifying Party Deductible from the first dollar (not just the amount in accordance with excess of $250,000); provided, further, that SPPR and Western, on the one hand, or the Partnership, on the other hand, shall not be liable for Damages pursuant to Section 9.3 prior to 8.2(a)(i) or Section 8.2(b)(i) (but not including Damages for breaches of Fundamental Representations) or Section 8.1(a) (but not including Damages for breaches of Partnership Fundamental Representations), respectively, that exceed, in the expiration of aggregate, $21,000,000 (the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1“Cap”).
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event The Partnership Indemnitees shall either Party only be liable for entitled to indemnification from SPPR and Western pursuant to Section 9.2(a)(i), 8.2(a)(ii) and Section 9.2(a)(iv8.2(b)(ii) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% following an inspection of the Purchase Price applicable Storage Tank performed in the ordinary course of business consistent with Schedule 3.7(g), and (y) all in such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) event, only for reasonable and necessary documented out-of-pocket costs and expenses incurred to address any such breach; provided, however, that neither SPPR nor Western shall be deemed liable for such costs and expenses unless the aggregate amount of such costs and expenses (of all Storage Tanks) exceed $500,000 and then only to be a single item for purposes the extent of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii)any such excess; provided, further, that neither Seller SPPR nor Buyer Western shall be required to make payments liable for indemnification such costs and expenses pursuant to Section 9.2(a)(i8.2(a)(ii) or Section 9.2(b)(i), respectively8.2(b)(ii) that collectively exceed, in an aggregate amount in excess of twelve the aggregate, $4,000,000. The Partnership shall be responsible for all costs and one-half percent (12.5%) of expenses relating to the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out performance of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Pricesuch Storage Tank inspection.
(c) Notwithstanding anything contained in this Agreement Section 8.9(a), to the contraryextent the Partnership Indemnitees or the Western Indemnitees are entitled to indemnification for Damages for claims arising from fraud or related to or arising from Taxes (including, except without limitation, in the case of the Partnership Indemnitees, Damages for breach of the representations or warranties in Section 3.12), SPPR and warranties expressly contained in Article V and Western, on the Seller Disclosure Schedulesone hand, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this AgreementPartnership, on the other hand, as the case may be, shall be fully liable for such Damages without regard to the Deductible or the Cap. For the avoidance of doubt, (i) SPPR and Western shall be fully liable (A) for Damages pursuant to Sections 8.2(a)(iii), 8.2(a)(iv), 8.2(b)(iii) and Seller hereby disclaims any other representations 8.2(b)(iv), as applicable, and for breaches of Fundamental Representations without regard to the Deductible or warrantiesthe Cap, whether made by such Party and (ii) the Partnership shall be fully liable for Damages pursuant to Section 8.1(b) or its Affiliates, officers, directors, employees, agents, 8.1(c) and for breaches of Partnership Fundamental Representations without regard to the Deductible or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeCap.
(d) In Notwithstanding Section 8.9(a), with respect to Covered Environmental Losses under Section 8.8(a), the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Western Indemnitees shall have not be obligated to indemnify, defend and hold harmless the Partnership Indemnitees for any such Covered Environmental Loss until such time as the amount of such Covered Environmental Losses associated with an individual claim or recourse against Seller or any exceeds $100,000 (the “Environmental Deductible”), at which time the Western Indemnitees shall be obligated to indemnify the Partnership Indemnitees for the amount of its Affiliates Covered Environmental Losses with respect to such breach, claim under this Article IX or otherwise.
(eSection 8.8(a) In addition to the other limitations set forth that are in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost excess of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on Deductible that are incurred by the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsPartnership Indemnitees.
Appears in 2 contracts
Samples: Contribution, Conveyance and Assumption Agreement (Northern Tier Energy LP), Contribution, Conveyance and Assumption Agreement
Limitations on Indemnification. (ai) A Party may assert a claim for indemnification hereunder only Notwithstanding anything to the extent contrary contained herein, except as provided in this Section 5.6(c), no BCC Indemnified Party shall be entitled to receive an indemnification payment with respect to any Action specified in this Section 5.6 unless the Indemnitee gives notice Action, or the aggregate amount of all Actions made by the BCC Indemnified Party hereunder, equals or exceeds $50,000 (in which case all of such claim Actions back to the Indemnifying first dollar will be recoverable).
(A) Subject to Section 5.6(c)(iii), the Parties agree that the right of any Indemnified Party to undertake an Action pursuant to Sections 5.6(a) and (b) shall survive the Closing until 11:59 p.m. in New York City on the date that is eighteen (18) months following the Closing Date (the “General Expiration Date”); provided, however, that if, at any time prior to the General Expiration Date, any Indemnified Party delivers a written notice in accordance with Section 9.3 prior 5.6(a)(i) or Section 5.6(a)(ii) asserting in good faith an Action for recovery under Section 5.6(a) or (b), then the Action asserted in such notice shall survive the General Expiration Date until such time as such Action is fully and finally resolved; (B) notwithstanding anything to the contrary in Section 5.6 (including 5.6(c)(ii)(A) hereof), the Parties agree that the right of any Indemnified Party to undertake an Action pursuant to Sections 5.6(a) and (b) with respect to (1) fraud, gross negligence, willful misconduct or intentional breach shall survive the Closing until the expiration of the statute of limitation applicable to the subject matter thereof, (2) with respect to the Tax representations made by BCC and Bona Vida pursuant to the provisions of Sections 3.1(l) and 4.1(l) respectively, shall survive the Closing for a period of ninety (90) days following the expiration of the applicable survival period statute of limitations period, and (3) the covenants and agreements of the Parties in this Agreement and the Transaction Documents which by their terms contemplate actions or impose obligations following the Closing shall survive the Closing and remain in full force and effect in accordance with respect their respective terms. To the extent that any covenants and agreements in this Agreement or the Transaction Documents contemplate performance prior to the representationClosing, warranty or covenant on which such covenants and agreements shall terminate to such extent upon the Closing; provided, that the failure of such provisions to survive shall not prevent an Indemnified Party from making any claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision for a breach of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant such provisions that occurred prior to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase PriceClosing.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty maximum liability of any kind or nature whatsoever Bona Vida Shareholder for Damages shall be equal to the value of the Merger Consideration received by such Bona Vida Shareholder at the Effective Time.
(including iv) Subject to Section 7.3, the Parties agree that the indemnification right set forth in this Agreement shall be the Parties sole and exclusive remedy with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any except for specific performance or other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeequitable remedy.
(dv) If any Bona Vida Shareholder is liable for Damages hereunder, such Bona Vida Shareholder shall have the option of discharging such liability in cash, BCC Common Stock at a value of $0.1175 per share (subject to adjustment for stock splits, stock dividends, combinations or similar events), or a combination thereof. If BCC is liable for Damages hereunder, BCC shall discharge such liability in cash.
(vi) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation reclassification, recapitalization, stock split, stock dividend (including any dividend or warranty in this Agreement, individually distribution of securities convertible into BCC Common Stock) or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates subdivision with respect to such breachBCC Common Stock, under this Article IX any change or otherwise.
(e) In addition conversion of BCC Common Stock into other securities, any other dividend or distribution with respect to the other limitations set forth in this Article IX, BCC Common Stock (or if a record date with respect to any claim of the foregoing should occur), after the date of this Agreement, appropriate and proportionate adjustments shall be made to the number of shares of BCC Common Stock and the price per share thereof that may be issuable for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) purposes pursuant to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in coststhis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Better Choice Co Inc.), Merger Agreement (Better Choice Co Inc.)
Limitations on Indemnification. Subject to the provisions of Section 9.7:
(a) A Party may assert no indemnification shall be payable to a claim for indemnification hereunder only to the extent the Indemnitee gives notice Buyer Indemnified Person as a result of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Losses arising under Section 9.2(a)(i), Section 9.2(a)(iv) or to a Company Indemnified Person as a result of any Losses arising under Section 9.2(b)(i9.3(a) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate amount of all Indemnifiable Losses which are incurred by all Buyer Indemnified Persons or suffered by Company Indemnified Persons, as applicable, exceeds $25,000 (the “Basket”), whereupon (in each case subject to Sections 9.4(b)(i) and 9.4(c)(i), as applicable, below) the Buyer Indemnitees Indemnified Persons or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller IndemniteesCompany Indemnified Persons, as applicable, shall be entitled, subject entitled to Section 9.4(b)(ii), to indemnification for (x) 50% receive the amount of all such Indemnifiable Losses up to 2% of Losses, including the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of Basket; provided, however, that the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) foregoing shall not apply to Indemnifiable any Losses resulting from or arising out of any breach or inaccuracy of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Excepted Representations;
(b) the maximum aggregate Losses payable to the Buyer be required to make payments for indemnification Indemnified Persons pursuant to (i) Section 9.2(a)(i) shall be an amount equal to $250,000 (the “Mini Cap”); provided, however, that the foregoing shall not apply to any Losses resulting from or Section 9.2(b)(i), respectively, in an aggregate amount in excess arising out of one hundred percent (100%) any breach or inaccuracy of any of the Purchase Price.Excepted Representations; (ii) Section 9.2(a)(ii) through 9.2(a)(ix) shall be an amount equal to the Remaining Payments; and (iii) Section 9.2(a)(viii) shall be an amount equal to the Escrow Amount; and
(c) Notwithstanding anything contained in this Agreement the maximum aggregate Losses payable to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect Company Indemnified Persons pursuant to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) Section 9.3(a) shall be an amount equal to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factorsMini Cap; provided, however, that the use foregoing shall not apply to any Losses resulting from or arising out of such standards any breach or engineering or institutional controls does not materially interfere with operations at inaccuracy of any of the affected facility Excepted Representations; and (ii) if any contamination at any Real Property Section 9.3(b) through 9.3(e) shall be an amount equal to $1,000,000 plus the Remaining Payments (except that is subject to indemnity the Buyer’s and HSCC’s aggregate liability for claims for Losses under Section 9.3 shall be reduced by Seller is exacerbated due to the negligence, gross negligence or willful misconduct Mini Cap on the first anniversary of Buyer after the Closing Date, except with respect to claims made by Company Indemnified Persons under Section 9.3(a) on or before the first anniversary of the Closing Date in accordance with this Agreement, which shall survive and be subject to the extent Mini Cap until such exacerbation increases the cost of the investigation or remediation of time as such contamination, Seller shall not be responsible for any such increase in costsclaim(s) have been resolved).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Homeland Security Capital CORP), Asset Purchase Agreement (DJSP Enterprises, Inc.)
Limitations on Indemnification. (a) A The Indemnified Party may assert a claim for indemnification hereunder only shall not be entitled to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv10.2(a) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts10.3(a), events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000as applicable, unless and until the aggregate amount of all Indemnifiable Losses in respect of which are incurred the Indemnified Party would otherwise be entitled to indemnification pursuant to Section 10.2(a) or suffered by the Buyer Indemnitees or the Seller IndemniteesSection 10.3(a), respectivelyas applicable, exceeds 2% $200,000 (the “Deductible”), and then only for the amount of Losses in excess of the Purchase PriceDeductible; provided, however, that the Deductible shall not apply to Losses arising out of or relating to any inaccuracy in or breach of any Fundamental Representation of the Indemnifying Party.
(b) The maximum aggregate amount of all Losses for which case the Buyer Indemnitees Indemnifying Party shall be liable pursuant to Section 10.2(a) or the Seller IndemniteesSection 10.3(a), as applicable, shall be entitled, subject not exceed the sum of (i) $2,500,000 plus (ii) ten percent (10%) of the Earnout Payments actually earned pursuant to Section 9.4(b)(ii2.4 (prior to giving effect to any offset rights set forth in this Agreement), to indemnification for (x) 50% unless such Losses arise out of all such Indemnifiable Losses up to 2% or result from any inaccuracy in or breach of any Fundamental Representation of the Purchase Price and Indemnifying Party (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under which case Section 9.2(a)(iv10.4(c) shall be deemed to be a single item for purposes of the foregoingapply).
(c) The maximum aggregate amount of all Losses arising out of or relating to (i) any inaccuracy in or breach of any Fundamental Representation of the Indemnifying Party or (ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i10.2(b), Section 10.2(c), Section 10.2(d), Section 10.2(e), Section 10.3(b), Section 10.3(c) or Section 9.2(b)(i10.3(d), respectivelyas applicable, in an aggregate amount in excess of twelve and one-half percent (12.5%) of for which the Indemnifying Party shall be liable shall not exceed the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(cd) Notwithstanding anything contained in this Agreement herein to the contrary, in no event shall an Indemnified Party be entitled to indemnification pursuant to this Article X for, any special, indirect, consequential, incidental or punitive damages (except for to the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor extent any other Person Indemnified Party is making required to pay any other express or implied representation or warranty of any kind or nature whatsoever (including with respect punitive damages to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreementa third party), and Seller hereby disclaims lost profits or any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agentsdiminution in value, or representativesany damages based on a multiple, including each of which is hereby excluded by agreement of the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwiseparties.
(e) In addition to the other limitations set forth in For purposes of this Article IXX, the amount of any Losses incurred by any Indemnified Party shall be calculated net of (i) any amounts actually recovered by such Indemnified Party from a third party with respect to any claim for indemnification regarding any breach of any representation such Losses, less the reasonable costs, fees, reserves and warranty set forth in Section 5.12: (i) expenses incurred to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factorsobtain such recovery; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at third party insurance proceeds actually received by such Indemnified Party with respect to such Losses under any Real Property that is subject applicable insurance policy, excluding self-insurance arrangements and less any applicable and reasonable collection costs, fees, expenses and reserves, deductibles, premium adjustments, retrospectively rated premiums and other similar amounts. If an Indemnified Party receives any amounts under applicable insurance policies or from any third party alleged to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any Losses subsequent to an indemnification set-off or payment, then such increase Indemnified Party shall promptly reimburse the Indemnifying Party for any set-off or payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount retained or received by the Indemnified Party, net of any applicable and reasonable collection costs, fees, expenses and reserves, deductibles, premium adjustments, retrospectively rated premiums and other similar amounts.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Lantronix Inc), Securities Purchase Agreement (Communications Systems Inc)
Limitations on Indemnification. (a) A No claim of a Buyer Indemnified Party that is capable of being made under any subsection of Section 8.2 other than subsection 8.2(a)(i) may assert a claim be made under Section 8.2(a)(i). Neither Buyer nor Seller shall be liable for indemnification hereunder only any Loss consisting of indirect, consequential, special, punitive or exemplary damages (except to the extent the Indemnitee gives notice of that such claim damages are awarded or paid to the Indemnifying a Third Party in accordance connection with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1a Third Party Claim).
(b) Notwithstanding The Buyer Indemnified Parties will not be entitled to recover any other provision Losses under Section 8.2(a)(ii) until such time as the total amount of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) all Losses that have been directly suffered or Section 9.2(b)(i) hereof (A) for incurred by any item one or items arising out more of the same factsBuyer Indemnified Parties, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect to which any one or more of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees Indemnified Parties has or the Seller Indemnitees, respectivelyhave otherwise directly become subject, exceeds 2% of $63,750 (the Purchase Price“Loss Threshold”), in which case the Buyer Indemnitees or Indemnified Parties will be entitled to recovery for the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% aggregate amount of all such Indemnifiable Losses up to 2% regardless of the Purchase Price and (yLoss Threshold; provided, however, that the limitations contained in this Section 8.3(b) all such Indemnifiable Losses will not apply to any breach of or inaccuracy in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingany Seller Fundamental Representation.
(i) The maximum aggregate amount of Losses that the Buyer Indemnified Parties will be entitled to recover under Section 8.2(a)(ii) (other than any Seller Fundamental Representation) will be limited to $1,275,000, and (ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an the maximum aggregate amount of Losses that the Buyer Indemnified Parties will be entitled to recover under (A) Section 8.2(a)(ii) in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out respect of any breach of or inaccuracy in any of the representations Seller Fundamental Representation and warranties in (B) Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer 8.2(a)(iii) will be required limited to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price$8,500,000.
(ci) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and The maximum aggregate amount of Losses that the Seller Disclosure SchedulesIndemnified Parties will be entitled to recover under Section 8.2(b)(ii) (other than any Buyer Fundamental Representation) will be limited to $1,275,000, neither and (ii) the maximum aggregate amount of Losses that the Seller nor any other Person is making any other express or implied representation or warranty Indemnified Parties will be entitled to recover under (A) Section 8.2(b)(ii) in respect of any kind breach of or nature whatsoever inaccuracy in any Buyer Fundamental Representation and (including with respect B) Section 8.2(b)(iii) will be limited to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise$8,500,000.
(e) In addition Any Losses hereunder will be determined without duplication of recovery that would result from the set of facts giving rise to such Losses constituting a breach or other violation of more than one representation, warranty or covenant hereunder.
(f) Notwithstanding anything to the contrary in this Agreement, nothing in this Article 8 or otherwise in this Agreement (i) prevents or limits any Indemnified Party from bringing an Action for fraud against any Person, including any Indemnifying Party, whose fraud has caused such Indemnified Party to incur Losses, or (ii) limits the Losses recoverable by such Indemnified Party from such Indemnifying Party in any such Action for fraud.
(g) There will be no obligation to indemnify under Section 8.2 to the extent the Loss relates to any breach of representation, warranty, or covenant expressly waived in writing by the other Party.
(h) Notwithstanding anything to the contrary in this Agreement, (i) any Losses the Buyer Indemnified Parties will be entitled to recover under this Article 8 shall be satisfied, at Seller’s sole discretion, in the form of either cash or Buyer Shares held by Seller (or a combination thereof), which Buyer Shares, for purposes of indemnification obligations under this Article 8, will be deemed as of each relevant payment date to have a value equal to the Buyer Shares Trading Price as of such date and (ii) any Losses the Seller Indemnified Parties will be entitled to recover under this Article 8 shall be satisfied by Buyer in cash.
(i) Subject to Section 8.3(f), from and after the Closing, the rights of Buyer and Seller to indemnification under this Article 8 will be the sole and exclusive remedy of the Parties and the Indemnified Parties with respect to any matter in any way relating to, arising out of or in connection with this Agreement, including any breach of, inaccuracy in or nonfulfillment of any representation, warranty, covenant or agreement contained in this Agreement. Notwithstanding the foregoing, the limitations set forth in this Article IX, Section 8.3(i) will not apply to claims for fraud or for any actions to specifically enforce the covenants in this Agreement in accordance with Section 9.6 or any remedies specifically provided for in the Transaction Documents with respect to the matters addressed therein.
(j) Any Losses otherwise recoverable by any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation Indemnified Party hereunder shall be limited to the cost reduced in amount by any insurance proceeds, indemnification payments or contribution payments attributable thereto and realized by such Indemnified Party in connection with such Losses or any of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areascircumstances giving rise thereto, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Dateeach Indemnified Party shall, to the extent any such exacerbation increases insurance proceeds, indemnification payments or contribution payments are realized after such Losses are recovered from the cost Indemnifying Party, promptly repay the amount of such Losses to the Indemnifying Party (but only to the extent of the investigation insurance proceeds, indemnification payments or remediation contribution payments realized by such Indemnified Party, net of any expenses incurred in connection with the recovery of such contaminationinsurance proceeds or indemnification or contribution payments); provided, Seller however, that the foregoing shall not be responsible for in no way obligate any such increase in costsIndemnified Party to seek recovery under any insurance policies or agreements with indemnification or contribution provisions or similar rights.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Helios & Matheson Analytics Inc.)
Limitations on Indemnification. (a) A Party may assert a The Indemnified Persons are not entitled to indemnification in respect of any claim for indemnification hereunder only to the extent the Indemnitee gives notice of under Section 7.1(a) (i) unless such claim to (which may be aggregated with (A) all related claims, and (B) all claims arising out of the Indemnifying Party same facts and circumstances) involves Losses in excess of $50,000, and (ii) unless and until Losses in accordance with Section 9.3 7.1(a) have been incurred, paid or properly accrued in an aggregate amount greater than $2,434,000 (the “Indemnification Threshold”); provided that for the purpose of determining whether the Indemnification Threshold has been exceeded, claims (when aggregated with (A) all related claims, and (B) all claims arising out of the same facts and circumstances) involving Losses of $50,000 or less shall be excluded. Notwithstanding the foregoing, the Indemnified Persons shall be entitled to recover for, and the limitations set forth in the preceding sentence shall not apply to, any Losses with respect to any breach of any of the Excluded Representations (as defined in Section 8.1). Once the Indemnification Threshold has been exceeded, the Indemnified Persons shall be entitled to recover all Losses in excess of the Indemnification Threshold.
(i) The Indemnifying Shareholders are liable for Losses under Section 7.1 of up to an aggregate maximum amount of (A) $48,750,000 prior to the expiration first anniversary of the applicable survival period with respect Closing Date, (B) $24,375,000 (less the aggregate amount of Losses in excess of $24,375,000 actually paid at any time to the representationIndemnified Persons) between the first anniversary of the Closing Date and the second anniversary of the Closing Date, warranty or covenant on which (C) $15,000,000 (less the aggregate amount of Losses in excess of $33,750,000 actually paid at any time to the Indemnified Persons) between the second anniversary of the Closing Date and the third anniversary of the Closing Date, (D) $10,000,000 (less the aggregate amount of Losses in excess of $38,750,000 actually paid at any time to the Indemnified Persons) between the third anniversary of the Closing Date and the fourth anniversary of the Closing Date, and (E) $5,000,000 (less the aggregate amount of Losses in excess of $43,750,000 actually paid at any time to the Indemnified Persons) between the fourth anniversary of the Closing Date and the fifth anniversary of the Closing Date (as adjusted, the “Cap”). Notwithstanding any other provision of this Agreement, any pending claim made hereunder shall only be subject to the Cap in effect at the time such claim is based, if any, set forth was made and no pending unresolved or unsatisfied claim for Losses shall be limited in Section 9.1any manner by any annual adjustment of the Cap.
(bii) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii)Agreement, in no event shall either Party the Indemnifying Shareholders will not be liable for indemnification pursuant to Losses in respect of claims arising under Section 9.2(a)(i), 7.1(e) (“Section 9.2(a)(iv7.1(e) or Section 9.2(b)(iClaims”) hereof in excess of (A) for any item or items arising out $30,000,000 prior to the first anniversary of the same factsClosing Date, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) $20,000,000 (less the aggregate amount of Losses in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x7.1(e) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses Claims in excess of 2% $10,000,000 actually paid at any time to the Indemnified Persons) between the first anniversary of the Purchase PriceClosing Date and the second anniversary of the Closing Date (the “Special Cap”). All Indemnifiable Notwithstanding any other provision of this Agreement, any pending claim made hereunder shall only be subject to the Special Cap in effect at the time such claim was made and no pending unresolved or unsatisfied claim for Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes limited in any manner by any annual adjustment of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase PriceSpecial Cap.
(iii) The limitations specified Notwithstanding anything to the contrary contained in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable this Agreement, except in cases of fraud or intentional misrepresentation, the maximum aggregate liability of any Indemnifying Shareholder for Losses under Sections 7.1 (other Losses arising out of any breach of or inaccuracy in any Excluded Representation) shall be limited to such Indemnifying Shareholder’s pro rata share of the representations Cash Escrow Fund and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase PriceStock Escrow Fund.
(c) Notwithstanding anything contained No Indemnifying Shareholder shall have any right of contribution, right of indemnity or other right or remedy against Parent or the Surviving Company in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor connection with any indemnification obligation or any other Person is making any other express liability to which such Indemnifying Shareholder may become subject under or implied representation or warranty of any kind or nature whatsoever (including in connection with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In Parent and Merger Sub agree and acknowledge that, except in the event that Buyer proceeds case of fraud or intentional misrepresentation or the failure of Parent, the Company or any of their Subsidiaries to pay the Merger Consideration, the remedies provided in this ARTICLE 7 and in ARTICLE 7A shall after the Effective Time, be the sole and exclusive remedy available to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have parties hereto for any claim or recourse against Seller cause of action arising out of, in connection with or any of its Affiliates with respect to such breach, under this Article IX Agreement or otherwisethe transactions contemplated herein.
(e) In addition to the other limitations set forth in For purposes of this Article IXARTICLE 7, with respect to any claim for indemnification regarding any breach each share of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation Parent Common Stock shall at all times be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations valued at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsParent Common Stock Price.
Appears in 2 contracts
Samples: Merger Agreement (Sunpower Corp), Merger Agreement (Sunpower Corp)
Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement:
(a) A (i) the aggregate liability of each of Parent and Buyer pursuant to Section 8.2 or Section 8.3, as the case may be, shall not exceed the Base Purchase Price, except that the foregoing limitation shall not apply to Parent’s obligations under Section 8.2(d), (e) and (g) or Buyer’s obligations under Section 8.3(c); (ii) the aggregate liability of Parent or Buyer pursuant to Sections 8.2(a), or 8.3(a), as the case may be (other than in respect of any inaccuracy or breach of the Specified Representations), shall not exceed, as to each party, an amount equal to 30% of the Purchase Price; (iii) the aggregate liability of Parent pursuant to Section 8.2(g) shall not exceed an amount equal to 30% of the Base Purchase Price, and (iv) the liability of Parent and Buyer pursuant to Sections 8.2(l)8.3(c) and 8.3(d), as the case may be, shall be as set forth in Section 8.9; provided, however, that the limitations in clauses (i), (ii) and (iii) shall not apply to any fraud or Willful Breach.
(b) no Indemnified Party will be entitled to recover Remote Damages pursuant to Sections 8.2 or 8.3, except to the extent that Remote Damages are awarded in the case of fraud or to the extent such damages are actually paid by the Indemnified Party to a third Person pursuant to a final, non-appealable Order or settlement in any Third-Party Claim, in which case such Remote Damages paid to such third Person shall be considered Losses for which recovery may assert a be sought in accordance with the terms of this Agreement;
(c) no claim for indemnification hereunder only may be made (i) by a Buyer Indemnitee pursuant to the extent the Section 8.2(a) or by a Seller Indemnitee gives pursuant to Section 8.3(a) unless written notice of such claim (describing the facts or events giving rise to such claim with reasonable specificity to the Indemnifying Party in accordance with Section 9.3 prior extent of the knowledge of the noticing party) has been given to the expiration of party from whom indemnification is sought (the applicable “Indemnifying Party”) during the relevant survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.18.1 (which will be the survival period of the representation and warranty alleged to have been breached); or (ii) by a Buyer Indemnitee pursuant to Section 8.2(g) unless written notice of such claim (describing the facts or events giving rise to such claim with reasonable specificity to the extent of the knowledge of the noticing party) has been given to Parent prior to the seventh (7th) anniversary of the Closing Date;
(d) Parent shall have no liability pursuant to Section 8.2(a): (i) for any Losses with respect to an individual matter or series of related matters until the cumulative aggregate amount of the Losses with respect to such matter or series of related matters arising out of the same facts or circumstances exceeds U.S.$175,000 (the “Threshold Amount”), in which case the amount of all such Losses (including those that are less than the Threshold Amount) shall be included for purposes of computing the Losses that are indemnifiable hereunder and/or applicable against the Basket Amount pursuant to clause (ii) below; and (ii) until the aggregate amount of the Losses of the Buyer Indemnitees for which indemnification would otherwise be available under Section 8.2(a) exceeds 0.75% of the Base Purchase Price (the “Basket Amount”), after which Parent will be obligated to indemnify for only that portion of such Losses of the Buyer Indemnitees that exceed the Basket Amount; provided, however, that the limitations on liability set forth in this clause (d) shall not apply to Losses incurred by a Buyer Indemnitee by reason of any inaccuracy or breach of a Specified Representation.
(be) Parent shall have no liability pursuant to Section 8.2(g) until the aggregate amount of the Losses of the Buyer Indemnitees for which indemnification would otherwise be available under Section 8.2(g) exceeds 1.0% of the Base Purchase Price (the “Environmental Deductible”), after which Parent will be obligated to indemnify Buyer Indemnitee for only Sellers’ Portion of such Losses of the Buyer Indemnitees that exceed the Environmental Deductible; provided, however, that the limitations on liability set forth in this clause (e) shall not apply to Losses incurred by a Buyer Indemnitee by reason of any inaccuracy or breach of the representations and warranties set forth in Section 2.14.
(f) Parent shall have no liability pursuant to Section 8.2 for any Loss to the extent a specific identified reserve with respect to such Loss is reflected in the Purchase Price Adjustments for Closing Working Capital or Transferred Company Indebtedness or reflected on Schedule 8.4(f) of the Disclosure Letter.
(g) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Agreement, Parent’s obligations under Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B8.2(a) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to any asserted breach or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any inaccuracy of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) 2.14 related to the extent applicable, Seller’s indemnification obligation a Remedial Action shall be limited to the cost amount of the least restrictive standard stringent, lowest cost approach to Remedial Action that is allowed under Environmental Requirements or remedy acceptable by the relevant Governmental Authority, that in either case is consistent with continued prudent operation of the relevant facility and generally accepted industry practices and that is reasonably available.
(h) Parent shall have no liability under Section 8.2(d) with respect to each applicable the Leased Sites for Losses to the extent occurring as a result of or triggered by (i) the closure, decommissioning or demolition after the Closing of any part of any facility or structure of any Transferred Company, other than as required under a Lease Agreement; or (ii) under Section 8.2 to the extent occurring as a result of or triggered by any sampling, monitoring, testing, or surface or subsurface investigation conducted after the Closing that is not expressly required pursuant to an Environmental Requirement of any Governmental Entity under applicable Environmental Law Authority (including engineering except where the Governmental Authority has requested such Remedial Action by reason of a request initiated by Buyer or institutional controls) based its Representatives). Notwithstanding the foregoing, Buyer shall be permitted to conduct any routine maintenance of any existing facility or structure on the Leased Sites without affecting the liability of Parent under Section 8.2(d) with respect to the Leased Sites.
(i) Parent shall have no liability under Section 8.2(g) for Losses to the extent occurring as a result of or triggered by (i) the closure, decommissioning or demolition after the Closing of any part of any facility or structure of any Transferred Company; or (ii) under Section 8.2 to the extent occurring as a result of or triggered by any sampling, monitoring, testing, or surface or subsurface investigation conducted after the Closing that is not expressly required pursuant to an Environmental Requirement of any Governmental Authority (except where the Governmental Authority has requested such Remedial Action by reason of a request initiated by Buyer or Representatives). Notwithstanding the foregoing, Buyer shall be permitted to conduct the following activities without affecting the liability of Parent under Section 8.2(g): (A) any routine maintenance of any existing facility or structure; (B) any demolition of any portion of any existing facility or structure and related utilities down to ground surface (but not below ground surface unless necessary to properly isolate the underground structure from the operating portions of the facility); and (C) any construction of new facilities or modification of any existing facility or structure but not environmental sampling facilities other than sampling that would be performed by a reasonable and prudent operator acting without the benefit of indemnification; provided, however, that, in each case (1) Buyer shall provide written notice to Parent at least thirty (30) days prior to such activity with information sufficient to enable Parent reasonably to evaluate the extent and nature of the contemplated disturbance of the property; (2) Parent shall have thirty (30) days in which to provide Buyer with comments and suggestions on the activity; and (3) Buyer shall take into account and, where commercially reasonable, accommodate Parent’s comments and suggestions regarding the activity.
(j) For purposes of Section 8.2(g), Losses shall not include (i) any Losses arising primarily from any change to a non-industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factorsReal Property by Buyer after the Closing; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at Loss resulting primarily from any increase in, worsening of or other adverse change in any Environmental Condition that arises from any act or omission attributable to Buyer or any Transferred Company (and their Representatives) following the Closing; and (iii) any expense related to management or employee time (whether opportunity costs, direct costs or otherwise).
(k) For purposes of Section 8.2(d) with respect to the Leased Sites, Losses shall not include (i) any Losses arising primarily from any change in use of the Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date(including an increase in capacity of the facilities or structures thereon) other than as required under a Lease Agreement; (ii) any Loss resulting primarily from any increase in, worsening of or other adverse change in any Environmental Condition that arises from any act or omission attributable to Buyer or any Transferred Company (or their Representatives) following the Closing; (iii) any Loss resulting from any Environmental Condition caused or created by Buyer or its Representatives, or that arises from Buyer’s operation of the Business or a change in Legal Requirements applicable thereto (except as it relates to Pre-Closing Environmental Conditions), in each case, during the term of the applicable Lease Agreement; and (iv) any cost and expense related to Buyer’s management or employee time (whether opportunity costs, direct costs or expenses, or otherwise).
(l) Buyer and Parent shall each take, and shall cause their respective Affiliates to take, all reasonable measures consistent with the safe and prudent operation of the applicable property to mitigate any Loss for which indemnification may be sought hereunder promptly upon a responsible officer or employee of an Indemnified Party or its Affiliates becoming aware of such Loss, and neither Buyer nor Parent shall be liable for any Loss to the extent the Indemnified Party or its Affiliates could have mitigated such exacerbation increases Loss by taking measures consistent with the cost safe and prudent operation of the investigation applicable property after a responsible officer or remediation employee of such contaminationIndemnified Party or its Affiliates becomes aware thereof.
(m) The Seller Indemnitees shall have no recourse against any Transferred Company, Seller shall not be responsible their Affiliates or their respective Representatives, assigns or successors for any such increase in costsindemnification claim asserted by a Buyer Indemnitee.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Rockwood Holdings, Inc.), Stock Purchase Agreement (Huntsman International LLC)
Limitations on Indemnification. (a) A Notwithstanding the provisions of this Article X, (i) no Acquiror Indemnified Party may assert shall be entitled to indemnification pursuant to Section 10.2(a)(i) (other than with respect to Seller Specified Representations) or pursuant to Section 10.2(a)(ii) for breach by Sellers of Section 7.4 or the last sentence of Section 5.7 (A) with respect to any claim or series of related claims unless and until the amount of all Losses incurred by all Acquiror Indemnified Parties with respect to such claim or series of related claims exceed on a cumulative basis an amount equal to $250,000 (such amount, the “Per-Claim Threshold Amount”) in which case the Acquiror Indemnified Parties shall, subject to this Section 10.4(a), be entitled to indemnification pursuant to Section 10.2 with respect to the full amount of Losses relating to such claim or series of related claims, and (B) unless and until the aggregate amount of all Losses incurred by all Acquiror Indemnified Parties for which such Acquiror Indemnified Parties would, but for this Section 10.4(a)(i), be entitled to indemnification hereunder pursuant to Section 10.2(a)(i) and Section 10.2(a)(ii) for breach by Sellers of Section 7.4 or the last sentence of Section 5.7 exceeds $4,750,000 (the “Indemnification Deductible”), and then only to the extent the Indemnitee gives notice of such excess, (ii) in no event shall the aggregate amount to be paid as indemnification pursuant to Section 10.2(a)(i) (other than with respect to Seller Specified Representations) and pursuant to Section 10.2(a)(ii) for breach by Sellers of Section 7.4 or the last sentence of Section 5.7 exceed $37,875,000 (the “Cap”), (iii) no Seller Indemnified Party shall be entitled to indemnification pursuant to Section 10.2(b)(i) (other than with respect to Acquiror Specified Representations) or pursuant to Section 10.2(b)(ii) for breach by Acquiror of Section 7.4 (A) with respect to any claim or series of related claims unless and until the amount of all Losses incurred by all Seller Indemnified Parties with respect to such claim or series of related claims exceed on a cumulative basis the Indemnifying Party Per-Claim Threshold Amount in accordance with which case the Seller Indemnified Parties shall, subject to this Section 9.3 prior 10.4, be entitled to the expiration of the applicable survival period indemnification pursuant to Section 10.2(b) with respect to the representationfull amount of Losses relating to such claim or series of related claims, warranty or covenant on and (B) unless and until the aggregate amount of all Losses incurred by all Seller Indemnified Parties for which such claim is basedSeller Indemnified Parties would, if anybut for this Section 10.4(a)(iii), set forth be entitled to indemnification pursuant to Section 10.2(b)(i) and Section 10.2(b)(ii) for breach of Section 7.4 exceeds the Indemnification Deductible, and then only to the extent of such excess, (iv) in no event shall the aggregate amount to be paid as indemnification pursuant to Section 9.110.2(b)(i) (other than with respect to Seller Specified Representations) and pursuant to Section 10.2(b)(ii) for breach of Section 7.4 exceed the Cap, (v) notwithstanding anything to the contrary in the Agreement, in no event shall the aggregate amount to be paid by Sellers as indemnification pursuant to Section 7.2 and this Article X exceed an amount equal to the Purchase Price, and (vi) in no event shall the aggregate amount to be paid by Acquiror as indemnification pursuant to Section 7.2 and this Article X exceed an amount equal to the Purchase Price. Furthermore, the rights of the Acquiror Indemnified Parties to indemnification with respect to (x) the Section 10.2(a)(v) Indemnified Matters shall be limited as provided on Schedule 10.2(a)(v) and (y) the Section 10.2(a)(vi) Indemnified Matters shall be limited as provided on Schedule 10.2(a)(vi).
(b) No Indemnified Party will be entitled to indemnification to the extent of any Losses that a court of competent jurisdiction has determined by final non-appealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of the party seeking indemnification (provided that the bad faith, gross negligence or willful misconduct of any Company prior to the Closing shall not affect the Acquiror Indemnified Parties’ indemnification rights).
(c) Notwithstanding any other provision of this Article IX:
Agreement to the contrary, (i) Except no Indemnified Party shall be entitled to indemnification under this Article X for any Losses to the extent such Losses reduced Closing Date Working Capital or increased Closing Date Indebtedness or Closing Date Company Transaction Expenses, in each case as provided finally determined pursuant Section 2.6 and (ii) no Indemnified Party shall be entitled to indemnification (x) under this Article X for (A) punitive damages (except to the extent payable to a third party in connection with a Third-Party Claim) or (B) lost profits, diminution in value or any “multiple of profits”, “multiple of cash flows” or similar measure (except to the extent payable to a third party in connection with a Third-Party Claim) or (y) with respect to a claim for Section 9.4(b)(iii7.2 or Section 10.2(a)(i) (other than for breach of Section 3.11, Section 3.19 or any representation related to compliance with Laws set forth in the first seven sentences of Section 3.21), Section 10.2(a)(v), or Section 10.2(b)(i), for any special, consequential or incidental damages (and, for the avoidance of doubt, in no event shall either the provisions of clause (x) insofar as it presents limitations on indemnification related to lost profits or diminution in value limit, directly or indirectly, Losses to which an Indemnified Party is entitled to indemnification in accordance with this clause (y)); provided that for the avoidance of doubt, to the extent that any Seller covenants or agrees to be liable responsible for a Liability or Loss under this Agreement except to the extent that such Liability or Loss is included as a current liability or contra-asset is included in the calculation of Closing Date Working Capital, the reduction in indemnification rights of Acquiror Indemnified Parties pursuant to clause (i) of this Section 10.4(c) shall be without duplication to the current liability or contra-asset that reduced the Sellers’ responsibility for such Liability or Loss in the first instance (such that, by way of example, if a particular Liability for which Seller has agreed to be responsible pursuant to this Agreement was $300,000 and the current liability included in Closing Date Working Capital with respect thereto was $200,000, the $100,000 that Sellers agreed to be responsible for shall not be reduced by application of clause (i) of this Section 10.4(c)).
(d) In determining the amount of any Losses for which the Indemnified Parties are entitled to assert a claim for indemnification hereunder, the amount of any such Losses will be determined after deducting therefrom (i) the amount of any Tax benefit or Relief arising out of or in connection with the incurrence of the Losses for which indemnity is sought that is actually realized by any such Indemnified Parties during the year in which the Loss occurred or the following year, (ii) the amount of any insurance proceeds from a third-party insurer (but not a captive insurance company) actually received by such Indemnified Parties in respect of such Losses, in each case net of direct costs and expenses (including direct collection expenses and any retention amounts) incurred by such Indemnified Parties or their Affiliates and (iii) any other amounts actually recovered from a third party pursuant to Section 9.2(a)(iindemnification or otherwise in respect of any Losses. All Indemnified Parties shall use reasonable best efforts to mitigate all Losses for which such Indemnified Parties are entitled or may be entitled to indemnification under this Article X. In the event that an Indemnified Party is entitled to any insurance, indemnification or other recovery from any third party (including, without limitation, as provided in the Lease pursuant to which the China Facility is leased), or to any Tax benefit or Relief, with respect to any Losses for which such Indemnified Party seeks indemnification, such Indemnified Party shall use reasonable best efforts, the cost and expenses of which shall be considered Losses hereunder, to obtain any such indemnification or recovery from such third party or Tax benefit or Relief, as the case may be. In the event that any insurance proceeds, Tax benefits, Relief or other amounts from any third party are actually recovered or realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, Tax benefits, Relief or other amounts relate, a portion of such indemnification payment equal to the lesser of the amounts so recovered or realized and the amount of the indemnification payment previously received from the Indemnifying Party by the Indemnified Party, less all costs, fees and expenses incurred in seeking and collecting such recovery and realization, shall promptly be refunded to the Indemnifying Party. A Tax benefit or Relief shall be actually realized if and to the extent that the Indemnified Party’s cumulative Liability for Taxes through a taxable period (including in the taxable year in which the Loss occurred and the following taxable year) taking into account the relevant Loss is less than such Indemnified Party’s cumulative Liability for Taxes through such period calculated without regard to such Loss, taking into account such Loss as the last item of deduction or expense in any period.
(e) No Indemnified Party shall be entitled to recover any amount relating to any matter arising under one provision of this Agreement to the extent such Indemnified Party (or other Acquiror Indemnified Parties in the event of an Acquiror Indemnified Party, or other Seller Indemnified Parties in the event of a Seller Indemnified Party) had already recovered such amount with respect to the same matter pursuant to that or other provisions of this Agreement. In addition, no Acquiror Indemnified Party shall be entitled to indemnification with regard to any item to the extent included in the Estimated Closing Statement or a Dispute Notice and subsequently compromised.
(f) Notwithstanding anything herein to the contrary, the Acquiror Indemnified Parties will not be entitled to indemnification with respect to any such claim to the extent that the discovery of such claim resulted from any invasive testing of soil, sediment or groundwater conditions at any Owned Real Property or Leased Real Property conducted by or on behalf of any Acquiror Indemnified Party, other than any such testing (i) required by any Governmental Authority or Environmental Laws; (ii) necessary or appropriate in connection with any bona fide construction, subsurface maintenance or repair activity at any Owned Real Property or Leased Real Property; (iii) necessary to respond to a Third Party Claim or facts that indicate a potentially significant risk to human health or the environment; or (iv) related to remediation or corrective action that had first commenced prior to the Closing Date
(g) In no event shall Acquiror or any of the Companies have any Liability whatsoever to any Seller (or any Affiliate of any Seller) for breaches of the representations, warranties, covenants or agreements of Sellers, and Sellers shall not (and shall cause their Affiliates not to), seek indemnification, contribution, reimbursement, subrogation or other similar rights of payment under common law from the Companies in respect of any representation, warranty, covenant or agreement made by Sellers pursuant to this Agreement.
(h) Notwithstanding anything to the contrary herein, nothing in this Section 9.2(a)(iv10.4 shall operate to limit any claim by any Indemnified Party for fraud in connection with the transactions contemplated by this Agreement.
(i) or No indemnity shall be provided under Section 9.2(b)(i) hereof (A10.2(a) for any item or items arising Losses to the extent such Losses arise out of or are in connection with any transaction of any Company that occurs after the same facts, events or circumstances where Closing on the Indemnifiable Loss relating thereto Closing Date and is less than $100,000 and (B) not in respect the ordinary course of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingbusiness.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(cj) Notwithstanding anything contained in any other provision of this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect no Indemnified Party shall be entitled to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, indemnification under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) X to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of any Losses which occur or are increased as a result of the least restrictive standard entry into force of, or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or propertyany change in, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to via final legislative action, including via the extent enactment into force of any statute or law or treaty by any Governmental Authority (including any increase in the Tax rates or any new Tax or any withdrawal of Relief), even if such exacerbation increases the cost of the investigation entry into force or remediation of such contaminationchange has retroactive effect; provided, Seller this Section 10.4(j) shall not be responsible read to exempt Sellers from liability for (i) any such increase change, statement or other practice of any Governmental Authority, including the issuance of regulations, guidance or rulings, Governmental Order, ordinance; (ii) any change, statement or other decision of any court, (iii) any change targeted specifically at counteracting a Tax avoidance scheme, or (iv) any obligation to pay Taxes in costsconnection with the transactions contemplated hereby.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) 12.4.1. Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii)Agreement to the contrary, in no event shall either Party be liable Losses include a party's incidental, consequential or punitive damages, regardless of the theory of recovery. Each party hereto agrees to use reasonable efforts to mitigate any losses which form the basis for any claim for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoinghereunder.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess 12.4.2. Notwithstanding any other provision of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained Sellers shall not be liable to Buyer in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty respect of any kind or nature whatsoever indemnification hereunder except to the extent that the aggregate amount of Losses of Buyer under this Agreement exceeds Five Hundred Thousand Dollars (including with respect to Seller, $500,000) (the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement"Basket Amount"), and Seller hereby disclaims then only to the extent of the excess over the amount of Two Hundred Fifty Thousand Dollars ($250,000); provided, however, that the aggregate amount of Losses of Buyer under this Agreement shall not exceed Four Million Dollars ($4,000,000) (the "Indemnity Cap"); further provided, however, the Basket Amount shall not be applicable to any amounts owed in connection with the determination of the Proration Amount pursuant to Section 2.6, to the payment or reimbursement obligations of Sellers under Sections 8.2 and 8.4.8, or to the indemnities set forth in Section 12.2(a) or Section 12.2(b); further provided, however, the Indemnity Cap shall not be applicable (i) if the transfer of the License Assets to Buyer has not occurred on or prior to such date which is four (4) years from the date of this Agreement as a result of a default under, or breach of, any of the terms of this Agreement by Sellers, (ii) if the Closing has not occurred on or prior to such date which is four (4) years from the date of this Agreement under the circumstances described in the second sentence of Section 11.1.2, or (iii) in the event of fraud.
12.4.3. Notwithstanding any other representations provision of this Agreement to the contrary, Buyer acknowledges and agrees that the maximum aggregate liability of Sellers pursuant to this Agreement to Buyer and any third parties for any and all Losses shall not exceed the Indemnity Cap, regardless of whether Buyer seeks indemnification pursuant to this Article 12, regardless of the form of action, whether in contract or tort, including negligence, and regardless of whether or not Sellers are notified of the possibility of damages to Buyer or any other third party; provided, however, the Indemnity Cap shall not be applicable if the transfer of the License Assets to Buyer has not occurred on or prior to such date which is four (4) years from the date of this Agreement as a result of a default under, or breach of, any of the terms of this Agreement by Sellers, (ii) if the Closing has not occurred on or prior to such date which is four (4) years from the date of this Agreement under the circumstances described in the second sentence of Section 11.1.2, or (iii) in the event of fraud.
12.4.4. Each party (a "recipient party") shall notify the other party in writing (the "representing party") reasonably promptly of any perceived breach by the representing party of which the recipient party has knowledge of any representations, warranties, whether made by such Party or its Affiliatescovenants and agreements, officers, directors, employees, agents, or representatives, and of any Losses (including a brief description of the implied warranty same) of merchantability and any implied warranty of fitness for a particular purpose.
(d) the recipient party caused thereby. In the event of any breach that Buyer proceeds to the Closing notwithstanding written notice from Seller is cured prior to the Closing that any breach by Seller Transfer Date in accordance with the terms of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees representing party shall have any claim no obligation under Section 12.2 or recourse against Seller Section 12.3 or any of its Affiliates otherwise to indemnify the recipient party with respect to such breach, under this Article IX or otherwiseLosses.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc), Asset Purchase Agreement (STC Broadcasting Inc)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only Notwithstanding anything to the extent contrary set forth herein, no Buyers’ Indemnified Party or Sellers’ Indemnified Party will be entitled to recover for Losses under Section 11.2(a) or 11.2(b), as applicable, (i) that individually are in an amount of $25,000 or less (a “Minor Claim”), which Minor Claims will not be aggregated unless such Minor Claims are part of a substantially similar class of, or related, claims, or (ii) unless and until Losses arising out of an individual claim or a series of unrelated claims, aggregate to an amount in excess of $302,500 (the Indemnitee gives notice of such claim to “Threshold Amount”), in which case, the Indemnifying Party will only be liable for the amount of Losses sought by the Indemnified Party in accordance with Section 9.3 prior to the expiration excess of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1Threshold Amount.
(b) Notwithstanding The Buyers’ Indemnified Parties first will exhaust the Escrow Account for all indemnifiable Losses under Section 11.2(a) before pursuing any other provision of this Article IX:
remedy hereunder, second will recover from the R&W Policy (ito the extent covered thereby) Except as provided in Section 9.4(b)(iii)until the maximum amount recoverable under the R&W Policy has been met, and third, solely to the extent there are any remaining Losses, may proceed directly against the Sellers’ Parent. Notwithstanding anything herein to the contrary, in no event shall either Party the aggregate liability of Sellers’ Parent, collectively, for all claims by the Buyers’ Indemnified Parties for indemnifiable Losses under (i) Section 11.2(a)(i) exceed the Escrow Amount, and such amounts shall be liable for indemnification pursuant recoverable solely from the Escrow Account, (ii) the Intermediate Cap Specific Indemnities, in the aggregate, exceed an amount equal to Section 9.2(a)(i$9,075,000, and (iii) Sections 11.2(a)(ii) through 11.2(a)(v), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate (including, for the avoidance of all Indemnifiable Losses which are incurred or suffered by doubt, any items set forth in Annex 11.2(a)(v)), exceed the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% aggregate amount of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject finally determined pursuant to Section 9.4(b)(ii2.3, actually received by Sellers; provided, however, that the foregoing limitations in clauses (i), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall do not apply to Indemnifiable a claim for Fraud (but exclusively to such claim of Fraud and any claims substantially related to Fraud, and such foregoing limitations shall apply to other unrelated claims brought in the same Action), which claim for Fraud has been proven in a court of competent jurisdiction. In all cases, Buyers shall use commercially reasonable efforts to recover insurance proceeds for all Losses arising out of any breach of any of for which the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, insurer may be liable under the R&W Policy. Nothing herein is intended to limit or 6.5, but in no case shall either Seller or Buyer be required affect Buyers’ ability to make payments for indemnification pursuant to Section 9.2(a)(i) claims against or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of recover amounts under the Purchase PriceR&W Policy.
(c) Notwithstanding anything contained The indemnification obligation of Buyers shall be capped at the amount of the Purchase Price, as finally determined pursuant to Section 2.3, actually received by Sellers; provided, however, that the foregoing limitations do not apply to a claim for Fraud (but exclusively to such claim of Fraud and any claims substantially related to Fraud, and such foregoing limitations shall apply to other unrelated claims brought in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreementsame Action), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty which claim for Fraud has been proven in a court of merchantability and any implied warranty of fitness for a particular purposecompetent jurisdiction.
(d) In Each of the event representations, warranties, covenants, agreements or other obligations contained herein that Buyer proceeds contains any “Material Adverse Effect,” “material,” “in all material respects,” or similar materiality qualifications shall be read as though such qualifications were not contained therein for the purposes of determining whether or not an Indemnified Party is entitled to indemnification pursuant to this Article XI or the amount of Losses to which such Indemnified Party may be entitled under this Article XI.
(e) Notwithstanding anything to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty contrary in this Agreement, individually or any amounts payable pursuant to the indemnification obligations under this Agreement shall be paid without duplication and in no event shall (i) any Indemnifying Party be obligated to indemnify any Indemnified Party with respect to any Losses with respect to any matter to the extent such matter was taken into account in the aggregate Adjustment Amount pursuant to Sections 2.2(b) and 2.3; or (ii) any Indemnified Party be indemnified under different provisions of this Agreement for the same Losses.
(f) The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any other breaches investigation made by or on behalf of Sellerthe Indemnified Party (including by any of its representatives) or by reason of the fact that the Indemnified Party or any of its representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party’s representations and warranties waiver of any condition set forth in Article VIII or Article IX, as the case may be.
(g) Amounts in respect of any Losses payable by any Indemnifying Party pursuant to the indemnification obligations under this AgreementAgreement shall be reduced by (i) any amounts actually received from third parties by or on behalf of the Indemnified Party (including applicable insurance proceeds), constitutes a Material Adverse Effect, no Buyer Indemnitees shall have (ii) an amount equal to any claim or recourse against Seller Tax Benefit received by the Indemnified Party or any of its Affiliates with respect to as a result of such breachLosses or any of the circumstances giving rise thereto, under this Article IX in or otherwise.
(e) In addition prior to the other limitations set forth taxable year in which indemnification for such Losses is paid by the Indemnifying Party (provided that this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i11.4(g)(ii) shall only apply to the extent applicablethat a Loss is actually paid by an Indemnifying Party and shall exclude any Loss covered by the R&W Policy), Seller’s and (iii) any insurance proceeds (net of direct collection expenses) recovered by the Indemnified Party (such amounts and benefits are collectively referred to herein as “Indemnity Reduction Amounts”). If any Indemnified Party receives any Indemnity Reduction Amounts in respect of a claim for which indemnification obligation 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 shall be limited promptly remit to the cost Indemnifying Party an amount equal to the excess (if any) of (x) the amount theretofore paid by the Indemnifying Party in respect of such claim, less (y) the amount of the least restrictive standard indemnity payment that would have been due if such Indemnity Reduction Amounts in respect thereof had been received before the indemnity payment was made. For the avoidance of doubt, it is not intended that any insurer be released from any obligation or remedy acceptable to each applicable Governmental Entity liability that it otherwise would have had under applicable Environmental Law (including engineering or institutional controls) based on the industrial use any of the relevant facility Target Companies Insurance Policies set forth on Schedule 5.19(a) or propertyunder the R&W Policy as a result of the indemnification provisions of this Agreement or be entitled to any rights of subrogation in relation to any party’s rights under this Agreement as a result of any claims paid or payable by such insurer under any of the Target Companies Insurance Policies set forth on Schedule 5.19(a). For purposes of this Section 11.4(g), proximity “Tax Benefit” shall mean any refund of commercial Taxes paid or reduction in the amount of Taxes that otherwise would have been due and residential areaspayable by the Indemnified Party, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations in each case determined at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due Tax rate applicable to the negligence, gross negligence character of income or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost gain of the investigation Indemnified Party offset by such Losses in the taxable year such income or remediation of such contamination, Seller shall not be responsible for any such increase in costsgain is offset.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Tredegar Corp), Purchase and Sale Agreement (Tredegar Corp)
Limitations on Indemnification. Notwithstanding anything to the contrary contained in this Agreement:
(ai) A Party may assert a claim The Osmotica Shareholders shall not have any liability under Section 9.01(a) unless the aggregate liability for indemnification hereunder Losses suffered by the Vertical/Trigen Indemnitees thereunder exceeds $9,675,000, and then only to the extent the Indemnitee gives notice of such claim excess, (ii) the Osmotica Shareholders’ aggregate maximum liability under Sections 9.01(a), 9.01(g) and 9.01(h) shall not exceed the amount then-available in the Osmotica Indemnification Escrow Account and (iii) the Osmotica Shareholders shall not have any liability under Section 9.01(a) for any individual Loss of less than $100,000 (the “Mini-Basket”) and such individual Losses shall not be aggregated for purposes of the preceding clauses (i) and (ii); provided, that the limitations on liability in the foregoing clauses (i), (ii) and (iii) shall not apply (A) to the Indemnifying Party in accordance with Section 9.3 prior to the expiration extent a breach of any representation or warranty of the applicable survival period with respect Osmotica Shareholders or Osmotica contained in Article III constitutes actual fraud by any Osmotica Shareholder or Osmotica, (B) to any breach of the representationOsmotica Fundamental Representations, warranty or covenant (C) for the avoidance of doubt, to any claims pursuant to Sections 9.01(b) through 9.01(f) (clauses (A) through (C), collectively, the “Vertical/Trigen Excluded Claims”), and Losses on which account of Vertical/Trigen Excluded Claims instead shall not exceed $322,500,000 in the aggregate (such claim is basedamount, if any, set forth in Section 9.1the “Osmotica Excluded Claim Cap”).
(b) Notwithstanding (i) The Vertical/Trigen Shareholders shall not have any other provision liability under Section 9.02(a) unless the aggregate liability for Losses suffered by the Osmotica Indemnitees thereunder exceeds $3,000,000, and then only to the extent of such excess, (ii) the Vertical/Trigen Shareholders’ aggregate maximum liability under Sections 9.02(a), 9.02(e) and 9.02(f) shall not exceed the amount then-available in the Vertical/Trigen Indemnification Escrow Account, and (iii) the Vertical/Trigen Shareholders shall not have any liability under Section 9.02(a) for any individual Loss of less than the Mini-Basket and such individual Losses shall not be aggregated for purposes of the preceding clauses (i) and (]); provided, that the limitations on liability in the foregoing clauses (i), (ii) and (iii) shall not apply (A) to the extent a breach of any representation or warranty of the Vertical/Trigen Shareholders or Vertical/Trigen contained in Article IV constitutes actual fraud by any Vertical/Trigen Shareholder or Vertical/Trigen, (B) to any breach of the Vertical/Trigen Fundamental Representations, or (C) for the avoidance of doubt, to any claims pursuant to Sections 9.02(b) through 9.02(d) (clauses (A) through (C), collectively, the “Osmotica Excluded Claims”), and Losses on account of Osmotica Excluded Claims instead shall not exceed $100,000,000 in the aggregate (such amount, the “Vertical/Trigen Excluded Claim Cap” and, together with the Osmotica Excluded Claim Cap, the “Excluded Claim Caps”)).
(c) (i) No party shall have any liability for any otherwise indemnifiable Loss to the extent the Vertical/Trigen Indemnitees have been otherwise compensated through the adjustment under Section 1.04; (ii) no party shall have any liability for an otherwise indemnifiable Loss that is contingent unless and until such contingent Loss becomes an actual Loss of the Indemnified Party and is due and payable, so long as the claim for such Loss was timely submitted pursuant to the provisions of this Article IX:
; (iiii) Except as provided in Section 9.4(b)(iii), in no event party shall either Party be liable for indemnification pursuant any Losses to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where extent the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Vertical/Trigen Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Osmotica Indemnitees, as applicable, failed to reasonably mitigate such Losses in accordance with Laws; and (iv) no party shall be entitled, subject to Section 9.4(b)(ii), to indemnification liable for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses any otherwise indemnifiable Loss arising out of any breach of any representation, warranty, covenant or agreement of such party unless a claim therefor is asserted with specificity and in writing by the representations Indemnified Party timely in accordance with Section 9.08, failing which such claim shall be waived and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeextinguished.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller For purposes of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach in determining the failure of any representation representations or warranties in Article III or Article IV to be true and warranty correct or the breach thereof, and calculating Losses hereunder, any “materiality” or “Material Adverse Effect” qualifications in the representations or warranties made hereunder shall be disregarded, other than (x) those set forth in Sections 3.03 (Non-Contravention and Approvals), 3.05 (Osmotica Financial Statements), 3.06 (No Undisclosed Liabilities), 3.07 (Absence of Changes)(including, for purposes of Section 5.12: 3.07(c), as materiality is referenced in Section 5.01(a)), 3.16 (iCompliance with Laws), Sections 4.03 (Non-Contravention and Approvals), 4.05 (Vertical/Trigen Financial Statements), 4.06 (No Undisclosed Liabilities), and 4.07 (Absence of Changes) (including, for purposes of Section 4.07(c), as materiality is referenced in Section 5.01(b)), 4.16 (Compliance with Laws), and (y) any qualification to the extent applicable, Seller’s indemnification obligation shall be limited to the cost it qualifies a representation requiring a list of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based specified items on the industrial use of the relevant facility Osmotica Disclosure Schedule or propertyVertical/Trigen Disclosure Schedule, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsas applicable.
Appears in 2 contracts
Samples: Business Combination Agreement (Osmotica Pharmaceuticals PLC), Business Combination Agreement (Osmotica Pharmaceuticals LTD)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only Notwithstanding anything in this Agreement to the extent contrary, in no event shall the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration cumulative indemnification obligations of the applicable survival period Selling Parties under Section 10.02(a)(ii) (other than with respect to the representationFundamental Representations or a breach of Section 2.08(b)) and Section 10.02(b) in the aggregate exceed an amount equal to $25,000,000, warranty subject to adjustment pursuant to Section 1.14 (the “Cap”); provided, however, that any and all breaches constituting fraud or covenant on which such claim is based, if any, breaches of any covenants or agreements set forth in Section 9.1herein shall not be subject to the Cap.
(b) Notwithstanding any other provision of anything in this Article IX:
(i) Except as provided in Section 9.4(b)(iii)Agreement to the contrary, in no event indemnification claims for Damages shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered asserted by the Buyer Indemnitees pursuant to Section 10.02(a)(ii) (other than with respect to the Fundamental Representations or a breach of Section 2.08(b)) or the Seller IndemniteesIndemnitees pursuant to Section 10.02(c)(ii), respectively, exceeds 2% under Article 10 unless the aggregate amount of Damages that would otherwise be payable under Section 10.02(a)(ii), on the Purchase Priceone hand, in which case and Section 10.02(c)(ii), on the other hand, exceed an amount equal to $2,333,333, subject to adjustment pursuant to Section 1.14 (the “Basket Amount”), whereupon the Buyer Indemnitees or the Seller Indemnitees, as applicablethe case may be, shall be entitled, subject entitled to Section 9.4(b)(ii), to indemnification receive all amounts for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses Damages in excess of 2% the Basket Amount up to the Cap. For the sake of clarity the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) Basket Amount shall not apply to Indemnifiable Losses arising out of any breach of any of indemnification claims for Damages asserted by the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification Indemnitees pursuant to Section 9.2(a)(i) or Section 9.2(b)(i10.02(b), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement No party hereto shall be obligated to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor indemnify any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller(i) any representation, warranty, covenant or condition specifically waived in writing by the Business, the Purchased Assets, the Assumed Obligations other party on or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, Damages to the extent that such exacerbation increases Damages are expressly reserved for in the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsSeparate Balance Sheet Data.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (BioScrip, Inc.)
Limitations on Indemnification. (ai) A Party may assert For purposes of determining the amount of any Loss resulting from the breach or inaccuracy of any representation or warranty contained in this Agreement (but not for purposes of determining whether there has been a claim for indemnification hereunder breach or inaccuracy of such representation or warranty), references in such representation or warranty to materiality, Material Adverse Effect, or similar qualifiers will be deemed omitted therefrom.
(ii) Seller shall have no liability arising out of or relating to Section 9.5(a)(iii) and no Buyer shall have any liability arising out of or relating to Section 9.5(b)(iii) unless and only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty aggregate Losses suffered or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitledhereunder exceed one percent (1%) of the Aggregate Purchase Price (the “Threshold Amount”), in which event Buyer Indemnitees or Seller Indemnitees, as applicable, shall, subject to Section 9.4(b)(ii)the other limitations contained herein, be entitled to indemnification for (x) 50% be indemnified only against the portion of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Threshold Amount; provided, however, that the limitation set forth in this Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii9.5(f)(ii) shall not apply to Indemnifiable Losses claims for indemnification relating to, resulting from or arising out of any breach of any of the representations and warranties representation or warranty set forth in Section Sections 4.1, 4.2, 4.4, 4.7, 4.8(b), 4.9, 4.18, 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, and 5.5.
(iii) In no event shall Buyers’ or 6.5, but in no case shall either Seller Seller’s aggregate liability arising out of or Buyer be required to make payments for indemnification pursuant relating to Section 9.2(a)(i9.5(a)(iii) or Section 9.2(b)(i9.5(b)(iii), respectivelyas applicable, in an aggregate amount in excess of one hundred exceed ten percent (10010%) of the Aggregate Purchase Price; provided, however, that the limitation set forth in this Section 9.5(f)(iii) shall not apply to claims for indemnification relating to, resulting from or arising out of any breach of any representation or warranty set forth in Sections 4.1, 4.2, 4.4, 4.7, 4.8(b), 4.9, 4.18, 5.1, 5.2, and 5.5.
(iv) Notwithstanding anything to the contrary in Sections 9.5(f)(ii) and 9.5(f)(iii), in no event shall the aggregate liability of Seller arising out of or relating to Sections 9.5(a)(ii) or 9.5(a)(iii), or the aggregate liability of Buyers arising out of or relating to Sections 9.5(b)(ii) or 9.5(b)(iii) exceed the Aggregate Purchase Price.
(cv) Notwithstanding anything contained in The amount of any Loss for which an Indemnitee claims indemnification under this Agreement shall be (A) reduced by any insurance proceeds received from a third-party insurer (net of reasonable costs incurred by such Indemnitee to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including enforce payment from such third-party insurer) by such Indemnitee with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement)such Loss, and Seller hereby disclaims any (B) reduced by indemnification, reimbursement, credits, rebates, refunds or other representations or warranties, whether made payments received by such Party Indemnitee from third parties with respect to such Loss (net of reasonable costs incurred by such Indemnitee to obtain such indemnification, reimbursement, credits, rebates, refunds or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeother payments).
(dvi) In the event that an Indemnitor pays to a Buyer proceeds Indemnitee or Seller Indemnitee any Losses that it is entitled to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effectrecover hereunder, no other Buyer Indemnitees Indemnitee or Seller Indemnitee, as applicable, shall have any claim or recourse against Seller or any of its Affiliates be entitled to recover the same Losses with respect to such breach, under this Article IX or otherwiseclaim for indemnification.
(evii) In addition Each party shall be bound by its common law duty to the other limitations set forth in mitigate any Losses subject to any claims for which such party seeks indemnification pursuant to this Article IX, with 9.
(viii) If the Indemnitee receives any payment from an Indemnitor in respect to any claim for indemnification regarding any breach of any representation Losses pursuant to this Section 9.5 and warranty set forth in Section 5.12: the Indemnitee could reasonably have recovered all or a part of such Losses from a third party, including any provider of insurance or other third party (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controlsa “Potential Contributor”) based on the industrial use underlying claim asserted against the Indemnitor, then the Indemnitee shall assign such of its rights to proceed against the relevant facility or property, proximity Potential Contributor as are necessary to permit the Indemnitor to recover from the Potential Contributor the amount of commercial and residential areas, and all other relevant factorssuch payment; provided, however, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller Indemnitee shall not be responsible required to assign any such rights to the Indemnitor (A) in the event the Potential Contributor is a Governmental Authority, or (B) if an attempted assignment of any rights against a Potential Contributor would be in violation of Law or Contract or would require the consent of a third party. An Indemnitor that is an assignee of any rights pursuant to this clause (viii) shall indemnify the Indemnitee for any Losses suffered by such increase Indemnitee as a result of any actions or omissions with respect thereto of the Indemnitor in costsconnection with or after giving effect to such assignment.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Supervalu Inc), Asset Purchase Agreement (Roundy's, Inc.)
Limitations on Indemnification. (a) A Party The indemnification provided for in Section 8.3(a) and Section 8.4 is subject to the following limitations:
(i) subject to Section 8.5(a)(ii), Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters described in Section 8.3(a) (other than breaches of the Fundamental Representations, or the representations and warranties in Section 3.13 (Taxes), which shall not be subject to such limitation), (A) unless such Losses exceed an aggregate amount equal to $3,150,000 (the “Threshold Amount”) and then only for Losses in excess of $2,100,000 and (B) in excess of $37,800,000 (the “Cap”), except that with respect to any Losses for breaches of the representations and warranties in Section 3.6(b), the “Cap” shall instead be $63,000,000;
(ii) without limiting the generality of the foregoing, any Loss, or any Losses arising out of the same or substantially similar facts and circumstances, shall not be entitled to indemnification under Section 8.3(a) or Section 8.4(a) (other than breaches of the Fundamental Representations or the representations and warranties in Section 3.13 (Taxes), which shall not be subject to such limitation) and shall not be indemnifiable or counted toward satisfaction of the Threshold Amount unless they exceed $75,000 individually or in the aggregate;
(iii) Buyer shall not be liable to the Seller Indemnified Parties for any Losses with respect to the matters described in Section 8.4(a) (other than breaches of Fundamental Representations of Buyer, which shall not be subject to such limitation), (A) unless such Losses exceed the Threshold Amount and then only for Losses in excess of $2,100,000 and (B) in excess of the Cap;
(iv) Seller shall not be liable to the Buyer Indemnified Parties, and Buyer shall not be liable to the Seller Indemnified Parties, for any Losses hereunder in excess of the Base Closing Cash Payment;
(v) neither Seller nor Buyer shall have any obligations under or liabilities in respect of Section 8.3(a) or Section 8.4(a) (except in respect of the Fundamental Representations, with respect to which claims for indemnity may assert a be made at any time permitted by law) from and after the applicable Survival Date; provided that any claim for indemnification hereunder only to indemnity made by a Buyer Indemnified Party or Seller Indemnified Party under Section 8.3(a) or Section 8.4(a), as the extent the Indemnitee gives notice of such claim to the Indemnifying Party case may be, in accordance with Section 9.3 the terms of this Article VIII prior to the expiration of the applicable survival period with respect to Survival Date will survive beyond the representation, warranty or covenant on which applicable Survival Date until such claim is basedfinally and conclusively resolved; and
(vi) each Buyer Indemnified Party and Seller Indemnified Party shall, if anyto the extent required by applicable Law, set forth in Section 9.1mitigate any indemnifiable Loss upon and after becoming aware of any event giving rise to such Losses.
(b) Notwithstanding any other provision of this Article IX:
(i) Except anything to the contrary herein, except as provided in Section 9.4(b)(iii2.6 (Purchase Price Adjustment), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(iArticle VI (Tax Matters), Section 9.2(a)(ivArticle IX (Termination) or Section 9.2(b)(i) hereof 10.6 (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this AgreementEquitable Relief), and Seller hereby disclaims any other representations or warrantiesin the Ancillary Agreements, whether made by such Party or its Affiliatesthe rights and remedies of Buyer and Seller, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
Buyer Indemnified Party and any Seller Indemnified Party (d) In the event that each Buyer proceeds Indemnified Party and Seller Indemnified Party is referred to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breachherein as an “Indemnified Party”), under this Article IX VIII are exclusive and in lieu of any and all other rights and remedies which Buyer or otherwise.
(e) In addition to the other limitations set forth in Seller, or any Indemnified Party, may have under this Article IX, Agreement with respect to any claim for indemnification regarding any breach of any representation this Agreement and warranty set forth in Section 5.12: (i) with respect to the extent applicabletransactions contemplated hereby or thereby, Seller’s indemnification obligation shall be limited and with respect to the cost Purchased Assets and the Business, except in case of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsfraud.
Appears in 2 contracts
Samples: Asset Purchase Agreement (B&G Foods, Inc.), Asset Purchase Agreement (Hershey Co)
Limitations on Indemnification. (a) A Party may assert a Seller will have no liability for any claim for indemnification pursuant to Section 9.2(a) if (i) in case of a claim (other than a Third Party Claim) arising out of an action Purchaser, the Entities or their respective Affiliates take after the Closing Date to obtain any Permit required for, or to comply with Transmission Tower Standards applicable to, an individual Transmission Tower in relation to facts or circumstances that would constitute a breach of the representations made in respect of Permits or Transmission Tower Standards in Section 5.16(a), Section 5.16(d) or Section 5.16(f), the Damages for which it would be responsible for such claim on a per-Transmission Tower basis are less than $5,000 and (ii) in the case of all other claims, the Damages for which it would be responsible for such claim and all related claims arising from substantially the same facts or circumstances are less than $50,000 (each such claim and, in the case of clause (ii), related claims, a “De Minimis Claim”). Seller will have no liability for indemnification pursuant to Section 9.2(a) unless and until the aggregate amount of Damages (excluding De Minimis Claims) for which it would be responsible for claims hereunder only exceeds an amount equal to $10,000,000 (the “Basket Amount”), in which case Seller will, subject to the extent the Indemnitee gives notice of other limitations hereunder, be liable for all such claim to the Indemnifying Party Damages (excluding Damages associated with De Minimis Claims) in accordance with Section 9.3 prior to the expiration excess of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, Basket Amount. The limitations set forth in this Section 9.19.5(a) will not apply to any claim for indemnification in respect of a breach or inaccuracy of the Seller Fundamental Representations.
(b) Notwithstanding any The maximum aggregate amount of indemnifiable Damages payable by Seller in respect of claims pursuant to Section 9.2(a) (other provision than in respect of this Article IX:a breach or inaccuracy of the Seller Fundamental Representations) will not exceed the Escrow Amount (the “Cap”).
(ic) Except as provided in Section 9.4(b)(iii), in Purchaser will have no event shall either Party be liable liability for any claim for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv9.3(a) that is a De Minimis Claim or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate amount of Damages (excluding all Indemnifiable Losses Damages associated with De Minimis Claims) for which are incurred or suffered by it would be responsible for claims hereunder exceeds the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase PriceBasket Amount, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitledPurchaser will, subject to Section 9.4(b)(ii)the other limitations hereunder, to indemnification be liable for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and Damages (yexcluding De Minimis Claims) all such Indemnifiable Losses in excess of 2% the Basket Amount. The maximum aggregate amount of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes indemnifiable Damages payable by Purchaser in respect of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification claims pursuant to Section 9.2(a)(i) or Section 9.2(b)(i9.3(a), respectivelytaken together, will not in an aggregate amount in excess of twelve and one-half percent (12.5%) of any event exceed the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeCap.
(d) In the event that Buyer proceeds No party hereto will be obligated to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with indemnify any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates Person with respect to such breach, under this Article IX or otherwiseany Damages with respect to any matter that was included in the calculation of the adjustments reflected in the Final Purchase Price pursuant to Section 3.4 (to the extent so included).
(e) In addition Notwithstanding anything to the other limitations set forth contrary in this Article IXAgreement, with respect the Parties agree and acknowledge that, for any amounts finally determined to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: be payable by Seller (i) in respect of claims pursuant to Section 9.2(a) (other than in respect of a breach or inaccuracy of any of the Seller Fundamental Representations), such amounts will solely be paid from funds then available in the Escrow Account and Seller will not be obligated to pay any such amounts remaining unpaid after the funds in the Escrow Account have been exhausted, provided that, subject to the extent applicableCap, Seller’s indemnification obligation shall Seller will be limited obligated to pay in full any such amounts remaining unpaid after the funds in the Escrow Account have been exhausted up to the cost amount of funds from the Escrow Account that were released to a Purchaser Indemnitee in respect of claims pursuant to (A) Section 9.2(a) in respect of a breach or inaccuracy of any of the least restrictive standard Seller Fundamental Representations, (B) Section 9.2(b), Section 9.2(c), Section 9.2(d) or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law Section 9.2(e), or (including engineering or institutional controlsC) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility Article 11 and (ii) if in respect of claims pursuant to (A) Section 9.2(a) in respect of a breach or inaccuracy of any contamination at any Real Property that is subject to indemnity by of the Seller is exacerbated due to Fundamental Representations or (B) Section 9.2(b), Section 9.2(c), Section 9.2(d) or Section 9.2(e), such amounts will be paid from funds then available in the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, Escrow Account only to the extent Purchaser elects at any time, by written notice to Seller, to have such exacerbation increases amounts paid from the cost of Escrow Account and Seller will be obligated to pay any such amounts not so paid from the investigation or remediation of such contaminationEscrow Account.
(f) Notwithstanding anything to the contrary in this Agreement, Seller shall not be responsible in no event will an Indemnifying Party have liability to any Indemnified Party for any such increase exemplary or punitive damages, except to the extent paid to a third party in costsconnection with a Third Party Claim.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Nii Holdings Inc)
Limitations on Indemnification. (a) A Party may assert a claim Except as provided in Article VI, the remedies provided in this Article X shall be exclusive and shall preclude assertion by either party of any other rights or the seeking of any and all other remedies against the other for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant claims based on which such claim is based, if any, set forth in Section 9.1this Agreement.
(b) Notwithstanding any other provision of Any claims for indemnity under this Article IX:
Agreement shall be subject to the following limitations and adjustments: (i) Except the provisions of Section 10.02 shall be effective only when the aggregate amount of all Damages for which Seller may be liable under this Article X exceeds $3,981,000 in which case Seller shall be liable for only such amounts as exceed $3,981,000, provided in Section 9.4(b)(iiithat this limitation shall not apply to indemnification for Damages for breaches of Sections 3.01, 3.04, 6.06(b), 6.09, 6.10, 6.13(d) and 6.13(e) and further provided that with respect to Damages arising out of a breach of Sections 3.16 or 6.13 (other than as specified in subsections 6.13(d)(i) and (ii) and 6.13(e)), which breach relates to income taxes of the Company (as opposed to and excluding any other taxes, such as sales, use, value added, withholding, social security, property or any other taxes), Section 10.02 shall be effective when the amount of such Damages for which Seller may be liable exceeds $500,000; (ii) the amount of any claim by either party for indemnification shall be subject to adjustment to reflect (A) any actual direct or indirect income tax benefit (taking into account the amount of any indemnification actually received) resulting therefrom to the indemnified party, (B) any insurance coverage with respect thereto and (C) any amounts reasonably recoverable from third parties (net of expenses) based on claims the indemnified party has against such third parties which would reduce the damages that could otherwise be sustained; (iii) in no event shall either Party Seller be liable liable, in the aggregate, for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) hereunder in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or an amount greater than $100,00033,175,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemniteesprovided, respectivelyhowever, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses that Damages arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations Sections 3.01 and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees 3.04 shall have any claim or recourse against Seller or any of its Affiliates with respect not be subject to such breach, under this Article IX or otherwise.
limitation; and (eiv) In addition neither party hereto shall be liable to the other limitations set forth party for special, incidental, consequential or punitive damages, except that nothing in this Article IX, with respect clause (iv) shall relieve an Indemnifying Party (as hereinafter defined) from liability for such damages where an Indemnified Party (as hereinafter defined) becomes liable therefor to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsa third party.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Sandhills Inc), Stock Purchase Agreement (Pantry Inc)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the (a) Seller Disclosure Schedules, neither Seller nor will not have any liability under Section 8.02(c) (other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including than with respect to a breach of any of the Seller Specified Representations) unless the aggregate liability for Losses suffered by the Acquiror Indemnitees thereunder exceeds $25,000,000 (the “Deductible”) and then only to the extent of such excess; (b) Seller’s aggregate liability under Section 8.02(c) (other than with respect to a breach of Sections 2.01 (Organization), the Business2.02 (Authority), the Purchased 2.11 (Brokers), 2.12 (Title), 2.13(a)-(c) (Wimbledon Assets), the Assumed Obligations or the transactions contemplated by this Agreement2.17 (Diamond Transaction), and 2.16 (Wimbledon Entities) (the “Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including Specified Representations”)) will not exceed 15% of the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
Final Purchase Price (dthe “Cap”); (c) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall (i) Acquiror will not have any claim or recourse against Seller or any of its Affiliates liability under Section 8.01(c) (other than with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any a breach of any representation of the Acquiror Specified Representations) unless the aggregate liability for Losses suffered by the Seller Indemnitees thereunder exceeds the Deductible, and warranty set forth in Section 5.12: (i) then only to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility excess, and (ii) if Acquiror’s aggregate liability under Section 8.01(c) (other than with respect to a breach of Section 3.02 (Authorization) (the “Acquiror Specified Representations”)) will not exceed the Cap; (d) no party will have any contamination at liability under Section 8.01(c) or 8.02(c) for any Real Property Loss arising out of any individual claim (or any series of claims arising out of substantially the same events, facts or circumstances, which will be aggregated for purposes of this clause (d)), unless such Loss exceeds $25,000, and any Losses that is subject are disregarded pursuant to indemnity by this clause (d) will not be aggregated for purposes of the preceding clauses (a) through (c); (e) neither Seller is exacerbated due to the negligencenor Acquiror will have any liability under Section 8.02(c) or Section 8.01(c), gross negligence or willful misconduct of Buyer after the Closing Date, for any otherwise indemnifiable Loss to the extent such exacerbation increases Losses are reflected on the cost Final Closing Adjustment Statement. Costs of defense will not be subject to any of the investigation limitations contemplated in this Section 8.07 or remediation be included in any calculation of whether any cap or similar metric was met. This Section 8.07 will not apply to indemnification for Taxes, which shall be governed exclusively by Article IX.
(b) For purposes of Sections 8.01(c) and 8.02(c), any qualification in any such representation or warranty as to materiality or Snacks Business MAE will be taken into account for purposes of determining whether such representation or warranty has been breached, but in the event that such representation or warranty has been determined to have been breached, such qualification as to materiality or Snacks Business MAE will thereafter be disregarded for purposes of determining the amount of Losses arising from such breach and Acquiror or Seller, as the case may be, may recover the entire amount of such contamination, Seller shall not be responsible for any such increase in costsLosses subject only to the Deductible and the Cap.
Appears in 2 contracts
Samples: Transaction Agreement (Kellogg Co), Transaction Agreement (Kellogg Co)
Limitations on Indemnification. Anything to the contrary contained herein notwithstanding
(aA) A Party may assert a Buyer Indemnitees shall not be entitled to recover from Pro-Fac pursuant to (1) Section 10.1(a)(i), Section 10.1(a)(iii) or Section 9.1 (except as otherwise provided in Section 9.1) of this Agreement any claim for indemnification Damages pursuant to Section 10.1(a)(i), Section 10.1(a)(iii) and Section 9.1 resulting from a single inaccuracy or breach that Buyer would otherwise be entitled to be indemnified by Pro-Fac for hereunder only (but for the limitations contained in this sentence) that is not equal to or in excess of $200,000 (the "Minimum Claim Amount") (provided, that for purposes of this clause (1) all claims for Damages arising out of the same facts or events or related to the extent same period (in the Indemnitee gives notice case of Section 9.1) resulting in such claim inaccuracy or breach shall be treated as a single claim) and (2) Section 10.1(a)(i), Section 10.1(a)(iii) and Section 9.1 unless and until the total of all claims for Damages pursuant to Section 10.1(a)(i), Section 10.1(a)(iii) and Section 9.1 that satisfy the Indemnifying Party Minimum Claim Amount exceeds $10,000,000 (the "Basket") (provided, that any Excess Payment and any amount paid by the Company pursuant to Section 6.27(ii) shall reduce the unused Basket, on a dollar-for-dollar basis; provided further, that in accordance with Section 9.3 prior the event that the remaining unused Basket is less than the amount by which the Basket would be reduced at any time by this proviso, the Buyer Indemnitees shall be entitled to the expiration recover from Pro-Fac such excess of the applicable survival period reduction amount over the unused Basket) and then, once the Basket has been exceeded, Buyer Indemnitees shall be entitled to recover from Pro-Fac all amounts claimed pursuant to such Section 10.1(a)(i), Section 10.1(a)(iii) and Section 9.1 that exceed the Basket and (B) the aggregate liability of Pro-Fac for indemnification payable pursuant to Section 10.1(a)(i), Section 10.1(a)(iii) and Section 9.1 shall not exceed $50,000,000 (the "Indemnity Cap"); provided, that the preceding limitations shall not apply to claims for Damages with respect to the representation, willful breach of any representation or warranty contained in this Agreement or covenant on which such claim is based, if any, any inaccuracy or breach of any representations and warranties set forth in Section 9.1.
(b) Notwithstanding any other provision 2.1, Section 2.2, Section 2.4, Section 2.16, Section 3.1, Section 3.2 or Section 3.3 of this Article IX:
Agreement or claims for Damages under clauses (iii) Except as provided in or (iv) of Section 9.4(b)(iii10.1(a), regardless of whether such indemnity obligations relate to matters covered by representations and warranties that are subject to the limitations expressed in no this sentence. For purposes of Section 10.1(a)(i), any requirement in any representation or warranty that an event or fact be material (whether quantitatively or qualitatively) in order for such event or fact to constitute a misrepresentation or breach of such representation or warranty shall either Party be liable ignored. The Minimum Claim Amount, the Basket and the Indemnity Cap shall also apply with respect to the Pro-Fac Indemnitees' claims for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv10.1(b) or Section 9.2(b)(i) hereof (A) for any item or items arising out of in the same factsmanner as described above; provided, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all that such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out claims for losses, damages, expenses, costs, Taxes, fines, penalties and fees of any breach Pro-Fac, amounts paid in settlement and reasonable expenses (including, without limitation, reasonable expenses of any investigation, attorney's fees, enforcement of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any defense fees, witness fees, court costs and disbursements of counsel and other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(eprofessionals) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any inaccuracy or breach of any representation representations and warranty warranties set forth in Section 5.12: (i) to the extent applicable4.1, Seller’s indemnification obligation shall be limited to the cost Section 4.2, or Section 4.5 of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in coststhis Agreement.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Agrilink Foods Inc), Unit Purchase Agreement (Pro Fac Cooperative Inc)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided In addition to the other limitations contained in Section 9.4(b)(iii)this Agreement, in no event shall either Party be liable for the Seller’s indemnification pursuant obligations under this §7 are subject to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof the following terms and conditions: (A) the Seller shall be liable to the Buyer Indemnified Parties under §7(b)(i) (other than under §7(b)(i)(E) or for any item a breach of §§3(k), 3(l), 3(q), 3(r), 3(s), 3(t) or items arising out of 3(u)) only if a Buyer Loss for which indemnification is claimed exceeds $10,000 (the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and “Small Claim Amount”); (B) in respect the Seller shall be liable to the Buyer Indemnified Parties under §7(b)(i) (other than under §7(b)(i)(E) or for a breach of each individual item where the Indemnifiable Loss relating thereto is equal to §§3(k), 3(l), 3(q), 3(r), 3(s), 3(t) or greater than $100,000, unless and until 3(u)) only if the aggregate amount of all Indemnifiable Buyer Losses which are incurred or suffered by under §7(b)(i) exceeds $150,000 (the Buyer Indemnitees or the Seller Indemnitees“Basket Amount”), respectively, exceeds 2% net of the Purchase PriceSmall Claim Amount, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject obligated to Section 9.4(b)(ii), to indemnification indemnify the Buyer Indemnified Parties for (x) 50% the aggregate amount of all such Indemnifiable Buyer Losses up to 2% under §7(b)(i); (C) in no event shall the Seller have any liability for indemnification under §7(b)(i) (other than under §7(b)(i)(E) or for a breach of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii§§3(k), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i3(l), 3(q), 3(r), 3(s), 3(t) or Section 9.2(b)(i3(u), respectively, ) in an aggregate amount in excess of twelve $1,250,000 (the “Cap Amount”); and one-half percent (12.5%D) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) Seller shall not apply have no liability for indemnification hereunder with respect to Indemnifiable Losses any claim for indemnification relating to or arising out of any breach Assumed Liability.
(ii) In addition to the other limitations contained in this Agreement, the Buyer’s indemnification obligations under this Section are subject to the following terms and conditions: (A) the Buyer shall be liable to the Seller Indemnified Parties under §7(c)(i) only if a Seller Loss for which indemnification is claimed exceeds the Small Claim Amount; (B) the Buyer shall be liable to the Seller Indemnified Parties under §7(c)(i) only if the aggregate amount of any all Seller Losses under §7(c)(i) exceeds the Basket Amount, net of the representations Small Claim Amount, in which case the Buyer shall be obligated to indemnify the Seller Indemnified Parties for the aggregate amount of all such Seller Losses under §7(c)(i); and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but (C) in no case event shall either Seller or the Buyer be required to make payments have any liability for indemnification pursuant to Section 9.2(a)(iunder §7(c)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase PriceCap Amount.
(ciii) Notwithstanding anything contained in this Agreement to the contrary§7(f)(i) above, except and solely for the representations and warranties expressly contained sake of clarity, Seller shall indemnify Buyer, without application of the limitations set forth in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement§7(f)(i), and Seller hereby disclaims for any other representations Adverse Consequences resulting from or warranties, whether made by such Party relating to Buyer’s right to indemnification under §7(b)(i)(E) or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in made by Seller under §§3(k), 3(l), 3(q), 3(r), 3(s), 3(t) or 3(u) of this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(eiv) In addition Notwithstanding anything contained herein to the other limitations set forth contrary, any Buyer Loss arising in this Article IX, connection with respect a Loan for which Buyer is entitled to any claim indemnification and for indemnification regarding any breach which a specific loan loss reserve is reflected on §1.2 of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation Disclosure Schedule shall be limited to the cost net of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use amount of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsspecific loan loss reserve.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Medallion Financial Corp), Asset Purchase Agreement (Medallion Financial Corp)
Limitations on Indemnification. (a) A The provisions for indemnity under Section 6.1(a)(i) (except with respect to the Fundamental Reps or Section 3.10 (Taxes)) or Section 6.1(b)(i) (except with respect to the Fundamental Reps) shall be effective only when the aggregate amount of all Losses for claims exceeds $[…***…], in which case the Indemnified Party may assert a claim shall be entitled to indemnification only for the Indemnified Party’s Losses in excess of such amount arising under Section 6.1(a)(i) (except with respect to the Fundamental Reps or Section 3.10 (Taxes)) or Section 6.1(b)(i) (except with respect to the Fundamental Reps), as applicable. In no event shall any Indemnifying Party have liability for indemnification hereunder only under Section 6.1(a)(i) or Section 6.1(b)(i), as applicable, for any amount exceeding, in the aggregate, $[…***…] (the “Cap”); provided, however, that (i) Losses arising from any inaccuracy or breach of any Fundamental Rep or Section 3.10 (Taxes) shall not be subject to the extent Cap or considered for purposes of determining when the Indemnitee gives notice Cap has been exceeded and (ii) the Buyer Indemnitees shall be entitled to recover from Seller pursuant to Section 6.1(a)(i) an amount, in the aggregate, up to $[…***…] for Losses arising from inaccuracies or breaches of such claim Section 3.11 (Intellectual Property) or Section 3.14 (Sufficiency of Assets), which amount shall be reduced by the amount of any indemnifiable Losses previously paid to the Indemnifying Party Buyer Indemnitees under Section 6.1(a)(i) (other than the amount of indemnifiable Losses arising from a breach or inaccuracy of any Fundamental Rep or Section 3.10 (Taxes)). Except as set forth in accordance with Section 9.3 prior 6.5, the maximum amount of indemnifiable Losses recoverable by the Buyer Indemnitees pursuant to Section 6.1(a) or by the Seller Indemnitees pursuant to Section 6.2(a) shall be […***…].
(b) The representations and warranties of Seller and Buyer contained in this Agreement shall survive the Closing and continue in full force and effect thereafter through and including the date that is […***…] after the Closing Date; provided that (i) the Fundamental Reps shall remain in full force and effect and shall survive indefinitely, the representations and warranties contained in Section 3.10 (Taxes) shall survive the Closing until the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
statute of limitations (bincluding extensions) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties contained in Section 5.13.11 (Intellectual Property) and Section 3.14 (Sufficiency of Assets) shall survive the Closing until the date that is […***…] after the Closing. Except as expressly provided otherwise in this Agreement, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, the covenants or 6.5, but agreements contained in no case this Agreement shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of survive the Purchase PriceClosing until fully performed.
(c) Notwithstanding anything contained Neither Buyer nor Seller shall be liable to any Seller Indemnitee or Buyer Indemnitee, respectively, for any exemplary, special, consequential or punitive damages, or for Losses based on lost profits or revenue, diminution in this Agreement value, a multiple of earnings or other similar financial metric, other than as a result of fraud, intentional misrepresentation or willful breach except to the contrary, except for the representations and warranties expressly contained extent awarded in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such a Third-Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeClaim.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller The amount of any representation or warranty indemnifiable Losses under this Article VI shall be reduced by any amount actually received by the Indemnified Party (net of any increase in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates premiums) with respect to such breachindemnifiable Losses under any third-party insurance coverage relating thereto or attributable to any net Tax benefit actually realized by such Indemnified Party resulting in a refund of Taxes or a reduction in the amount of Taxes payable in a taxable period before or during which, under this Article IX or otherwise.
within one year after which, such Loss occurred (e) In addition such amount, an “Alternative Reimbursement”). If, after receipt of any indemnification payment hereunder, an Indemnified Party receives an Alternative Reimbursement in respect of the same Losses for which indemnification was made and such Alternative Reimbursement was not taken into account in assessing the amount of indemnifiable Losses, then such Indemnified Party shall accept such Alternative Reimbursement for the account of the Indemnifying Party and shall turn over all of such Alternative Reimbursement to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) Indemnifying Party up to the extent applicable, Seller’s indemnification obligation shall be limited to the cost amount of the least restrictive standard or remedy acceptable indemnification paid by the Indemnifying Party pursuant to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use this Agreement in respect of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of same Losses for which such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsAlternative Reimbursement was paid.
Appears in 1 contract
Limitations on Indemnification. (ai) A Party may assert a No claim for indemnification hereunder only to may be asserted against either Acquiror, on the extent one hand, or any Stockholder, on the Indemnitee gives other hand, hereunder, unless written notice of such claim is received by the Party from whom indemnification is being sought describing, in reasonable detail (to the Indemnifying Party in accordance with Section 9.3 extent known at such time), the claim itself and the facts and circumstances upon which the claim is based on or prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant date on which such claim is based, if any, the Party’s right to indemnification terminates as set forth in Section 9.16(e).
(bii) Notwithstanding any other provision of this Article IXanything to the contrary contained herein:
(iA) Except as provided except for the representations and warranties regarding authority and enforceability in the final two sentences of Section 4(a)(i)(A), ownership of the shares in the first two sentences of Section 4(a)(ii), ownership of the NY License-Holders in the last sentence of Section 4(a)(ii), capitalization in clauses (A) – (D) in Section 9.4(b)(iii4(a)(iii), and brokerage fees in no event Section 4(a)(xxiii), and the covenants and agreements of Acquiror regarding the post-closing merger consideration adjustment in Section 2(e), cost of insurance in Section 5(a)(ii), costs relating to consents and approvals in Section 5(c)(i), Transfer Taxes in Section 5(c)(iv), recovery rights in Section 6(h) and expenses in Section 8(b), (x) the Stockholders shall either Party not be liable to Acquiror or any of its Affiliates or any of their respective directors, officers, employees, agents, successors and permitted assigns for any claim for indemnification pursuant to any of clause (i) through (iv) of Section 9.2(a)(i), Section 9.2(a)(iv6(a) or Section 9.2(b)(i) hereof (A) other than for any item or items a claim arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000a PL/GL Indemnified Claim, unless and until the aggregate amount of all Indemnifiable Losses which are incurred or suffered by Damages that otherwise would be recovered from the Buyer Indemnitees or Stockholders hereunder exceeds $20,000,000 (the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price“Indemnification Basket”), in which case the Buyer Indemnitees Stockholders shall be liable only for the amount of Damages in excess of the Indemnification Basket; (y) no individual claim for Damages pursuant to any of clause (i) through (v) of Section 6(a) may be made by Acquiror or any of its Affiliates or any of their respective directors, officers, employees, agents, successors and permitted assigns, or shall be reimbursable by the Stockholders or shall be included in calculating the aggregate Damages for purposes of this clause (A) unless the amount of that particular claim (other than for a claim arising out of a PL/GL Indemnified Claim), exceeds the de minimis threshold of $50,000 (the “Indemnification Threshold”); and (z) if the Closing occurs, except in connection with the representations, warranties, covenants and agreements that are expressly stated in the beginning of this Section 6(c)(ii)(A) as not being subject to the limitations in this Section 6(c)(ii)(A), the sole and exclusive remedy of Acquiror or any other Person has against Stockholders relating in any manner to this Agreement or the Seller Indemniteestransactions contemplated hereby (including with respect to PL/GL Indemnified Claims, the Retained Guaranty and claims pursuant to Section 6(a)(v)) shall be recovery of shares of Acquiror Common Stock that Acquiror is to deliver to Escrow Agent pursuant to Section 6(c)(ii)(A). At the Closing, as applicablecollateral for the Stockholders’ indemnification obligations under this Section 6, shall be entitledAcquiror will deliver to Escrow Agent a number of shares of Acquiror Common Stock equal to the quotient of (i) $200,000,000 divided by (ii) the Value Per Share, subject rounded to the nearest whole number (the “Escrow Fund”). The Escrow Agent will release such shares from escrow as provided in the Escrow Agreement.
(B) Except for the representations and warranties regarding authority and enforceability in the final two sentences of Section 9.4(b)(ii4(b)(i)(A), capitalization in clauses (A) – (C) in Section 4(b)(ii), authority to issue shares in Section 4(b)(iii), and brokerage fees in Section 4(b)(xiii) and the covenants and agreements of Acquiror regarding the Merger Consideration in Section 2, the Additional Payment in Section 2(g), access in Section 5(a)(iii), payment for certain pre-closing transactions in Section 5(a)(iv), financing cooperation in Section 5(a)(vii), indemnification for set forth in Section 5(b)(ii), consents and approvals set forth in Section 5(c)(i), Transfer Taxes in Section 5(c)(iv), recovery rights in Section 6(h) and expenses in Section 8(b), (x) 50% Acquiror shall not be liable to the Stockholders or any of all such Indemnifiable Losses up their Affiliates or any of their respective directors, officers, employees, agents, successors and permitted assigns for any claim for indemnification pursuant to 2% any of clause (i) through (iii) of Section 6(b) unless and until the aggregate amount of indemnifiable Damages that otherwise would be recovered from Acquiror equals or exceeds $20,000,000 (the “Acquiror Indemnification Basket”), in which case Acquiror shall be liable only for the amount of Damages in excess of the Purchase Price and Acquiror Indemnification Basket; (y) all such Indemnifiable Losses in excess no individual claim for Damages pursuant to clause (i) through (iii) of 2% Section 6(b) may be made by the Stockholders or any of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) their Affiliates or any of their respective directors, officers, employees, agents, successors and permitted assigns, or shall be deemed to reimbursable by Acquiror or shall be a single item included in calculating the aggregate Damages for purposes of this clause (B) unless the foregoing.
amount of that particular claim exceeds the de minimis threshold of $50,000; and (iiz) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer no event shall be required to make payments the aggregate liability of Acquiror for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i6(b), respectivelyexcept in connection with the representations, warranties and agreements that are expressly stated in an aggregate amount the beginning of this Section 6(c)(ii)(B) as not being subject to the limitations in excess of twelve and one-half percent (12.5%) of the Purchase Pricethis Section 6(c)(ii)(B), exceed $200,000,000.
(iiiC) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) Neither Party shall not apply be obligated to Indemnifiable Losses arising out of any breach of any of indemnify the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its AffiliatesAffiliates and their respective directors, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability successors and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, permitted assigns with respect to any Damages if and to the extent that such other Party received credit or other compensation for such Damages in the adjustments to the Merger Consideration, if any, to be made pursuant to the terms of this Agreement as finally determined pursuant to Section 2(e).
(D) Any indemnified party hereunder shall take reasonable action to mitigate the damages that are the subject of any claim for indemnification regarding hereunder, including by taking reasonable action to obtain recovery under any insurance policies or similar arrangements available to such indemnified party.
(E) No party hereto shall have any liability under this Agreement for any punitive, consequential, special or indirect Damages, including business interruption, loss of future revenue, profits or income or loss of business reputation or opportunity relating to the breach or alleged breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in coststhis Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ventas Inc)
Limitations on Indemnification. (a) A Party may assert a claim The indemnification provided for indemnification hereunder only in Sections 9.01 and 9.02 shall be subject to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IXfollowing limitations:
(i) Except as provided in Section 9.4(b)(iii), in no event The Stockholders shall either Party not be liable obligated to pay any amounts for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items under this Article IX arising out of the same factsany Losses based upon, events arising out of or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) otherwise in respect of each individual item where any inaccuracy or breach disclosed in writing to GRS and specifically waived in writing by GRS prior to the Indemnifiable Loss relating thereto Closing.
(ii) Neither GRS, the Company nor the Stockholders shall be obligated to pay any amounts for indemnification under this Article IX, except those based upon, arising out of or otherwise in respect of Sections 3.02, 3.21, 3.28, 3.29, 5.22, 5.29, 9.01 (ii), (iii) and (iv), 11.01 and 11.02 and Article IV hereof (the "Basket Exclusions"), until the aggregate indemnification payments, exclusive of the Basket Exclusions, equals one percent (1%) of the Purchase Price (the "Basket Amount"), whereupon GRS, or the Company and Stockholders, as the case may be, shall be obligated to pay any indemnification payments, including the Basket Amount, in full. It is equal to expressly understood that the Basket Amount shall serve as a "trigger" for indemnification and not as a "deductible" (for example, if the indemnity claims for which GRS or greater than the Stockholders would, but for the provisions of this subparagraph (ii), be liable is in the aggregate amount of $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 21% of the Purchase Price is $70,000, the Stockholders would then be liable for the entire $100,000 and (ynot just $30,000). This Section 9.04(ii) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall will not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor which any other Person is making party had actual Knowledge at any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller time prior to the Closing that date on which such representation and warranty is made or any intentional breach by Seller any party of any representation covenant or warranty in this Agreementobligation, individually and GRS or in the aggregate with any other breaches of Seller’s representations Stockholders, as the case may be, will be jointly and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates severally liable for all damages with respect to such breach, under this Article IX or otherwisebreaches.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Stock Purchase Agreement (General Roofing Services Inc)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to To the extent the Indemnitee gives notice of such claim Partnership Indemnified Parties are entitled to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable indemnification for indemnification Losses pursuant to Section 9.2(a)(i), Section 9.2(a)(iv9.3(a) or Section 9.2(b)(i) hereof (A) other than for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal Losses related to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.14.6), 5.2Anadarko shall not be liable for those Losses unless the aggregate amount of Losses exceeds 1% of the sum of (i) the Cash Consideration, 5.8plus (ii) the dollar value of the Unit Consideration on the Closing Date, 5.13plus (iii) the dollar value of the GP Consideration on the Closing Date (with each general partner unit being deemed for this purpose to have the same value as a common unit) (the sum of (i), 5.17(ii) and (iii) being the “Aggregate Consideration”) (the “Deductible”), 6.1and then only to the extent of any such excess.
(b) In addition, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments the extent the Partnership Indemnified Parties are entitled to indemnification for indemnification Losses pursuant to Section 9.2(a)(i) or Section 9.2(b)(i9.3(a), respectivelyAnadarko shall not be liable for such Losses that exceed, in an aggregate amount in excess of one hundred percent (100%) the aggregate, 25% of the Purchase PriceAggregate Consideration less the Deductible.
(c) Notwithstanding anything contained in this Agreement Section 9.8(a) and (b), to the contraryextent the Partnership Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.3(b), except 9.3(c), 9.3(d), 9.3(e), 9.3(f) or 9.3(g) or for claims arising from fraud, Anadarko shall be fully liable for such Losses without respect to the representations and warranties expressly contained Deductible in Article V Section 9.8(a) and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreementlimitations in Section 9.8(b), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In To the event that Buyer proceeds extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(a), the Partnership shall not be liable for those Losses unless the aggregate amount of Losses exceeds, in the aggregate, the Deductible, and then only to the Closing notwithstanding written notice from Seller prior extent of any such excess. In addition, to the Closing extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(a), the Partnership shall not be liable for such Losses that any breach by Seller of any representation or warranty in this Agreementexceed, individually or in the aggregate with any other breaches aggregate, 10% of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwisethe Aggregate Consideration less the Deductible.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Notwithstanding Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date9.8(d), to the extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(b) or for claims arising from fraud, the Partnership shall be fully liable for such exacerbation increases Losses without respect to the cost of Deductible and the investigation or remediation of such contamination, Seller shall not be responsible for any such increase limitations in costsSection 9.8(d).
Appears in 1 contract
Limitations on Indemnification. (a) A Party may Subject to the last sentence of this Section 8.6(a), Purchaser Indemnified Parties shall not assert a any claim for indemnification hereunder of any Losses under Section 8.2(a)(1) until such time as the aggregate amount of all such Losses shall exceed $50,000.00 (the “Deductible”), in which event Sellers shall only be required to pay or be liable for Losses in excess of the Deductible. Subject to the extent last sentence of this Section 8.6(a), the Indemnitee gives notice aggregate liability of such claim Sellers for indemnification claims under Section 8.2(a)(1) shall be limited to the Indemnifying Party in accordance with Section 9.3 prior aggregate amount paid (regardless of the form of payment) by Purchaser to the expiration Sellers under Sections 2.5 through 2.8 (the “Cap”). Notwithstanding any provision of this Section 8 to the applicable survival period contrary, the Deductible shall not apply to any indemnification claim with respect to any breach by Sellers of any representation or warranty contained in any of Sections 3.2 (Authorization), 3.5 (Brokers’ Fees), 3.6 (Title to Assets), 3.8(b) (Operations in Ordinary Course), 3.10 (Taxes), 3.13 (Benefit Plans), 3.16 (Environmental Matters), 3.21 (Litigation) and 3.24 (Regulatory Matters), or (ii) as a result of any fraudulent action, which are limited to an aggregate amount, together with any other liability of Sellers for indemnification claims pursuant to this Section 8.6, equal to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1Cap.
(b) Subject to the last sentence of this Section 8.6(b), Seller Indemnified Parties shall not assert any claim for indemnification of any Losses under Section 8.3(a)(1) until such time as, and to the extent that, the aggregate amount of all such Losses shall exceed the Deductible, in which event Purchaser shall only be required to pay or be liable for Losses in excess of the Deductible. Subject to the last sentence of this Section 8.6(b), the aggregate liability of Purchaser for indemnification claims under Section 8.3(a)(1) shall be limited to the Cap. Notwithstanding any other provision of this Article IX:Section 8 to the contrary, the Deductible shall not apply to any indemnification claim under this Section 8 (i) with respect to any breach by Purchaser of any representation or warranty contained in any of Sections 4.2 (Authorization), 4.6 (Brokers’ Fees) and 4.8 (Valid Issuance of Share Consideration) and or (ii) as a result of any fraudulent action.
(ic) Except as provided in Section 9.4(b)(iii)Sections 7.6 and 9.9, in no event shall either Party be liable for if the Closing occurs, indemnification pursuant to this Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, 8 shall be entitled, subject to Section 9.4(b)(ii), to indemnification the exclusive remedy for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of this Agreement (including any of the representations representation, warranty and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything covenant contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty than in respect of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) claims based on the industrial use of the relevant facility conduct constituting fraud or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsintentional misrepresentation.
Appears in 1 contract
Limitations on Indemnification. Notwithstanding anything to the contrary in this Section 6 or elsewhere in this Agreement:
(a) A Party may assert a claim for In no event shall the Controlling Members be required to provide indemnification hereunder only pursuant to Section 6.2(a)(i) unless and until the extent Seller Indemnified Parties shall have incurred aggregate Losses in excess of $100,000 (the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, “Basket”) resulting from otherwise indemnifiable matters set forth in Section 9.16.2(a)(i), after which the Controlling Members shall be required to provide indemnification for Losses from the first dollar.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in In no event shall either Party Buyer be liable for required to provide indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv6.3(a)(i) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the Buyer Indemnified Parties shall have incurred aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided Basket resulting from otherwise indemnifiable matters set forth in Section 9.4(b)(iii6.3(a)(i), neither Seller nor after which Buyer shall be required to make payments provide indemnification for indemnification Losses from the first dollar.
(c) The aggregate amount of all Losses for which the Controlling Members shall be liable pursuant to Section 9.2(a)(i6.2(a)(i) or Section 9.2(b)(i), respectively, in an shall not exceed $800,000. The aggregate amount in excess of twelve and one-half percent (12.5%all Losses for which Buyer shall be liable pursuant to Section 6.3(a)(i) of the Purchase Price.
(iii) shall not exceed $800,000. The limitations specified set forth in this Section 9.4(b)(i) and Section 9.4(b)(ii6.7(c) shall not apply to Indemnifiable Losses based upon, arising out of, or by reason of Section 6.2(a)(ii)-(v), Section 6.3(a)(ii), any inaccuracy in or breach of any of the representations and warranties in Section 5.1Fundamental Representation or Fraud, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case which shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of not exceed the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only Notwithstanding anything to the extent the Indemnitee gives notice of such claim to the Indemnifying Party contrary contained in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IXAgreement:
9.4.1 Other than claims in respect of a breach of or inaccuracy in a Fundamental Representation, (i) Except as provided in Section 9.4(b)(iii), in no event shall either Party Seller or Existing Operator be liable for indemnification liable, or required to make any payment pursuant to Section 9.2(a)(i9.2(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof for any Seller Indemnifiable Damages suffered by any of the Purchaser Indemnified Persons (Aa) for any item or items arising out of the same factsDe Minimis Claims, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (Bb) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% dollar amount of all such Seller Indemnifiable Losses up to 2% of the Purchase Price and Damages (y) together with all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification damages indemnifiable pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%9.2(i) of the Purchase Price.
Separate PSA, as well as any De Minimis Claims) exceeds Five Hundred Eighty Five Thousand and no/100 Dollars (iii$585,000.00) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Sellersuch amount, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement“Basket Amount”), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) then only to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility excess and (ii) the maximum aggregate liability of Seller and Existing Operator in respect of all claims or rights of action against Seller and/or Existing Operator arising under or pursuant to Section 9.2(i) of this Agreement (together with all damages indemnifiable pursuant to Section 9.2(i) of the Separate PSA) shall be limited to, and not exceed, Six Million and no/100 Dollars ($6,000,000.00) (the “Liability Cap”). Notwithstanding the foregoing, if any contamination at any Real Property that the Separate PSA is subject to indemnity by Seller is exacerbated due to the negligenceterminated, gross negligence or willful misconduct of Buyer after but the Closing Dateoccurs under this Agreement, the Basket Amount and the Liability Cap shall be adjusted to Three Hundred Forty-Eight Thousand Five Hundred Eleven and no/100 Dollars ($348,511.00) and Three Million Five Hundred Seventy-Four Thousand Four Hundred Sixty-Eight and no/100 Dollars ($3,574,468.00), respectively.
9.4.2 Other than claims in respect of a breach of or inaccuracy in a Fundamental Representation, (i) in no event shall Purchaser be liable for, or required to make any payment pursuant to Section 9.3(i), for any Purchaser Indemnifiable Damages suffered by the Seller Indemnified Persons (a) for any De Minimis Claims, and (b) unless and until the aggregate dollar amount of all such Purchaser Indemnifiable Damages under this Agreement (together with all similar damages indemnifiable pursuant to Section 9.3(i) of the Separate PSA, but excluding De Minimis Claims) exceeds the Basket Amount, and then only to the extent of such exacerbation increases excess, and (ii) the cost maximum aggregate liability of Purchaser in respect of all claims or rights of action against Purchaser arising under or pursuant to Section 9.3(i) of this Agreement (together with all similar damages indemnifiable pursuant to Section 9.3(i) of the investigation or remediation of such contaminationSeparate PSA) shall be limited to, Seller shall and not be responsible for any such increase in costsexceed, the Liability Cap.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin-American Healthcare REIT IV, Inc.)
Limitations on Indemnification. (a) A Party may assert Notwithstanding anything in this Article IX to the contrary:
(i) Seller shall not be responsible, pursuant to clause (i) or (ii) of Section 9.02, for any Losses suffered by any Purchaser Indemnitee arising out of a breach of any representation, warranty or covenant of Seller herein unless a claim for indemnification hereunder only to therefor is asserted in writing within 24 months after the extent Closing Date (except that in the Indemnitee gives notice case of a breach of an Inventory Representation, such claim to must be asserted in writing within sixty (60) days after the Indemnifying Party Closing Date, in accordance with the case of a breach of an Environmental Representation, such claim must be asserted in writing within five (5) years after the Closing Date, and in the case of a breach of a Fundamental Representation, and in the case of a breach of any of the covenants set forth in Section 9.3 12.08, Article X and Article XI, such claim must be asserted in writing prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.statute of limitations);
(bii) Notwithstanding any other provision of this Article IX:
Seller shall not be liable, pursuant to clause (i) Except as provided in or (ii) of Section 9.4(b)(iii)9.02, in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, Losses suffered by Purchaser Indemnitees unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Purchaser Indemnitees or as a result of the Seller Indemnitees, respectively, matters described in such clauses exceeds 2an amount equal to 1% of the Adjusted Purchase Price, in which case and then only to the Buyer Indemnitees or the Seller Indemniteesextent of any such excess; provided, as applicablehowever, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
that this clause (ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses any claim for indemnification arising out of any a breach of any Fundamental Representation or any covenant in Section 12.08, Article X or Article XI;
(iii) the aggregate liability of Seller hereunder, pursuant to clauses (i) and (ii) of Section 9.02, for Losses suffered by the Purchaser Indemnitees as a result of matters described in such clauses shall in no event exceed an amount equal to 10% of the Adjusted Purchase Price; provided, however, that this clause (iii) shall not apply to any claim for indemnification arising out of a breach of any Fundamental Representation or any covenant in Section 12.08, Article X or Article XI;
(iv) neither party hereto shall be liable to the others for indirect, special, incidental, consequential or punitive damages claimed by such other party resulting from such first party’s breach of its representations, warranties or covenants hereunder;
(v) Seller shall have no obligations under clause (i) of Section 9.02 with respect to any breach of the representations and warranties contained in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, 3.19 to the extent any Losses suffered by any Purchaser Indemnitee arising out of such breach are (A) result from conditions contributed to or 6.5exacerbated by any Purchaser Indemnitee, but only to the extent the condition was contributed to or exacerbated by such Purchaser Indemnitee, and (B) result from any change in no case shall either Seller or Buyer be required use of any Transferred Real Property, but only to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.extent the condition resulted from such change; and
(cvi) Notwithstanding Seller shall not, notwithstanding anything contained in this Agreement to the contrary, except for be obligated to indemnify the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor Purchaser Indemnitees or any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, person with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) matter to the extent applicable, Seller’s indemnification obligation shall be limited that such matter was reflected in the calculation of the adjustment to the cost of the least restrictive standard or remedy acceptable Closing Date Payment, if any, pursuant to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsSection 2.03(d).
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Potlatchdeltic Corp)
Limitations on Indemnification. (a) A Party may assert a claim The provisions for indemnification hereunder only to under Section 8.1(i) and 8.2(i), as the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period case may be, with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement other than in Section 4.1(h) (which shall include any breach of contract claim relating to any such breach of representation or warranty), as well as Sellers' indemnification obligations under Section 8.1(v), shall be effective only when the contraryaggregate amount of all Losses for which indemnification is sought from Sellers under Section 8.1(i) or 8.1(v) or Purchaser under Section 8.2(i), except as the case may be, exceeds $2,600,000 (the "Deductible"), in which case the indemnified party shall be entitled to indemnification of the indemnified party's Losses in excess thereof. The indemnification obligations of Sellers pursuant to Section 8.1(i) or 8.1(v) or Purchaser pursuant to Section 8.2(i), as the case may be, with respect to indemnification for the breach of any of the representations and warranties expressly contained in Article V and this Agreement (and, in the Seller Disclosure Schedulescase of Sellers, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Sellerthe matters referenced in Section 8.1(v)) shall be effective only until the dollar amount paid by the indemnifying party in respect of the Losses indemnified against under Sections 8.1(i) or 8.1(v), on the Businessone hand, or 8.2(i), on the Purchased Assetsother hand, aggregates to an amount equal to the Assumed Obligations or cash amount of the transactions contemplated by this Agreementpurchase price paid pursuant to Section 3.1 (the "Cap"), and Seller hereby disclaims neither Sellers nor Purchaser shall have any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness liability whatsoever for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty contained in this Agreement (and, in the case of Sellers, liability under Section 8.1(v)) in excess of the Cap. Any Losses caused by a breach of the covenants contained in this Agreement, individually or in otherwise arising under Sections 8.1(ii), 8.1(iii) or 8.1(iv) and 8.2(ii), 8.2(iii) or 8.2(iv), and, notwithstanding the aggregate with foregoing provisions of this Section 8.5(a), any other breaches Losses resulting from a violation of Seller’s the representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) 4.1(h), shall be indemnified from the first dollar without regard to the extent applicableDeductible or the Cap.
(b) Purchaser and Sellers agree that any party to this Agreement may seek damages constituting a Loss arising from the performance or non-performance of this Agreement, Seller’s indemnification obligation including with respect to breach of contract or breach of warranty pursuant to Articles 4 or 5 hereof; provided, however, that neither party shall be entitled to recover punitive damages and, in the case of Purchaser, damages constituting consequential damages shall be limited to the cost amounts compensating Purchaser for any loss in value of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law Purchased Assets; and provided, further, that there shall be no double recovery for any Loss (including engineering or institutional controls) based on it being the industrial use intent of the relevant facility or propertyparties, proximity of commercial and residential areas, and all other relevant factors; providedfor example, that if lost profits were a factor in determining the use loss in value of such standards or engineering or institutional controls does a Purchased Asset, Purchaser could not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible separately recover for any such increase in costslost profits).
Appears in 1 contract
Samples: Asset Purchase Agreement (Endo Pharmaceuticals Holdings Inc)
Limitations on Indemnification. (a) A Party may assert a claim for No Buyer Indemnified Party, on the one hand, or any Seller Indemnified Party, on the other hand, shall be entitled to indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representationan Indemnifiable Claim pursuant to Sections 6.2(a)(i) or Sections 6.2(b)(i), warranty or covenant on which such claim is basedas applicable (or, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less more than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all one such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person Claim is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IXasserted, with respect to any claim all such Indemnifiable Claims) until the aggregate amount of Damages with respect to all such Indemnifiable Claims or Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, exceeds Twenty-Five Thousand Dollars ($25,000) (the "Threshold"), in which event such Buyer Indemnified Party or Seller Indemnified Party, as the case may be, shall be entitled to indemnification hereunder for indemnification regarding any all Damages in excess of the Threshold, provided that the Threshold will not apply to a breach of representation or warranty under Sections 3.2(b), (e) (as to title), or (f). Furthermore, the maximum aggregate liability of Seller with respect to all Indemnifiable Claims pursuant to Sections 6.2(a)(i) and the maximum aggregate liability of Buyer with respect to all Indemnifiable Claims pursuant to Sections 6.2(b)(i) shall be Twelve Million Dollars ($12,000,000) (the "Cap"), provided that the Cap will not apply in instances of fraud or in the event of a breach of representation or warranty under Sections 3.2(b), (e) (as to title), or (f). Furthermore, no Buyer Indemnified Party, on the one hand, or any representation and warranty set forth in Seller Indemnified Party, on the other hand, shall be entitled to indemnification hereunder with respect to an Indemnifiable Claim pursuant to Section 5.12: 6.2, as applicable (ior, if more than one such Indemnifiable Claim is asserted, with respect to all such Indemnifiable Claims) to the extent applicable, Seller’s indemnification obligation shall be limited to such Indemnified Party receives insurance proceeds or third party contractual payments for the cost of the least restrictive standard Indemnifiable Claim or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases that the cost Indemnifiable Claim is included in the calculation of Standard Cost pursuant to the investigation or remediation of such contamination, Seller Long-Term Supply Agreement. Buyer shall not be responsible entitled to indemnification under Section 6.2(a)(vi) to the extent that Buyer incurs costs, expenses or liability other than (x) for any such increase a clean-up action or remediation required by law or initiated by a third-party (including, but not limited to, a governmental authority or agency) or (y) discovered in coststhe ordinary course of Buyer's business.
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except if the Closing occurs, (i) Seller will not have any liability under Section 8.02(c) (other than with respect to a breach of Sections 2.01 (Organization), 2.02 (Authorization), 2.11 (Brokers), and 2.12 (Title) (collectively, the “Seller Specified Representations”)) unless the aggregate liability for Losses suffered by the representations Acquiror Indemnitees thereunder exceeds $1.08 million (the “Deductible”), and warranties expressly contained in Article V and then only to the extent of such excess, (ii) Seller’s aggregate liability under Section 8.02(c) (other than with respect to a breach of any of the Seller Disclosure SchedulesSpecified Representations) will not exceed $5.4 million (the “Cap”), neither (iii) (A) Acquiror will not have any liability under Section 8.01(c) (other than with respect to a breach of Sections 3.01 (Organization), 3.02 (Authorization), 3.04 (Brokers) and 3.05 (Financing) (collectively, the “Acquiror Specified Representations”)) unless the aggregate liability for Losses suffered by the Seller nor Indemnitees thereunder exceeds the Deductible, and then only to the extent of such excess, and (B) Acquiror’s aggregate liability under Section 8.01(c) (other than with respect to a breach of any other Person is making of the Acquiror Specified Representations) will not exceed the Cap, and (iv) no Party will have any other express liability under Section 8.01(c) or implied 8.02(c), as applicable, for any Loss arising out of any individual claim (or any series of claims arising out of substantially the same events, facts or circumstances, which will be aggregated for purposes of this clause (iv)), unless such Loss exceeds $100,000, and any Losses that are disregarded pursuant to this clause (iv) will not be aggregated for purposes of the preceding clauses (i) through (iii). This Section 8.07 will not apply to indemnification for Taxes, which will be governed exclusively by Article IX.
(b) For purposes of Sections 8.01(c) and 8.02(c), any qualification in any such representation or warranty as to materiality, Rochas Business MAE or Acquiror MAE will be taken into account for purposes of any kind determining whether such representation or nature whatsoever (including with respect to Sellerwarranty has been breached, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In but in the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any such representation or warranty in this Agreementhas been determined to have been breached, individually such qualification as to materiality, Rochas Business MAE or in Acquiror MAE will thereafter be disregarded for purposes of determining the aggregate with any other breaches amount of Seller’s representations Losses arising from such breach and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any the applicable Indemnitee may recover the entire amount of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition Losses subject to the other limitations set forth in this Article IX, with respect VIII.
(c) Notwithstanding any other provision hereof in no event will any Indemnitee be entitled to any claim for indemnification regarding any breach of any representation and warranty set forth in double recovery under Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard 8.01 or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsSection 8.02.
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Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IXto the contrary:
(i) Seller shall have no liability under Section 10.2(a)(i) unless and until (x) Seller is timely and properly notified of a potential claim in accordance with Section 10.5 and (y) the aggregate liability that Seller would have under Section 10.2(a)(i) exceeds on a cumulative basis an amount equal to [. . .] (the “Threshold Amount”) (in which event Purchaser shall be entitled to the full amount of the indemnity and not just the amount in excess of the Threshold Amount);
(ii) Purchaser shall have no liability under Section 10.1(a) unless and until (x) Purchaser is timely and properly notified of a potential claim in accordance with Section 10.5 and (y) the aggregate liability that Purchaser would have under Section 10.1(a) exceeds on a cumulative basis an amount equal to the Threshold Amount (in which event Seller shall be entitled to the full amount of the indemnity and not just the amount in excess of the Threshold Amount), provided, however, that in no event shall Purchaser have any obligation to indemnify under Section 10.1(a) for any amount to the extent that such amount, when aggregated with all other amounts payable as a result of indemnification under Section 10.1(a) would be in excess of the Initial Payment plus any Subsequent Payments; and
(iii) Except as provided in Section 9.4(b)(iii)10.3(b) below, in no event shall either Party be liable for indemnification pursuant Seller have any obligation to indemnify under Section 9.2(a)(i10.2(a), Section 9.2(a)(iv10.2(b) or Section 9.2(b)(i) hereof (A10.2(c) for any item or items arising out amount, to the extent that such amount, when aggregated with all other amounts payable as a result of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to indemnification under Section 9.4(b)(ii10.2(a), to indemnification for (xSection 10.2(b) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (yand/or Section 10.2(c) all such Indemnifiable Losses would be in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingInitial Payment plus any Subsequent Payments.
(iiiv) Except In no event shall Seller have any obligation to indemnify under Section 10.2(c) for any amount, to the extent such amount, when aggregated with all other amounts payable as provided in a result of the indemnification under Section 9.4(b)(iii), neither Seller nor Buyer shall 10.2(c) would be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price[. . .].
(iiib) The In no event shall the limitations specified on indemnification provided in subsection (a) of this Section 10.3 apply to indemnification with respect to those matters listed in Section 9.4(b)(i10.2(a)(ii) through 10.2(a)(ix), as to which there shall be no limit on recovery for indemnification and Section 9.4(b)(iiPurchaser shall be entitled to recover all Losses from Euro one with no time limit for recovery thereof.
(c) shall not apply With respect to Indemnifiable Losses arising out of any breach of any by Seller of the representations and warranties set forth in Section 5.13.6 hereof, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments any claim by Purchaser for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement shall not be subject to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement)Threshold Amount, and Purchaser shall be entitled to recover any and all Losses from Euro one. Notwithstanding the foregoing sentence, Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including shall have no liability for breaches of Section 3.6(a) unless and until (x) Seller is timely and properly notified of a potential claim in accordance with Section 10.5 and (y) the implied warranty aggregate liability for Seller for breaches of merchantability and any implied warranty of fitness for Section 3.6 (a) exceeds on a particular purposecumulative basis an amount equal to [. . .]. Back to Contents
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise[. . .
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.]
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Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the The Seller Indemnifying Party in accordance with Parties will not have any obligation under Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii5.2(a), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate amount of all Indemnifiable Losses for which are incurred or suffered by the Buyer Indemnitees or the Seller IndemniteesIndemnifying Parties are obligated thereunder exceeds $100,000 (the "Threshold"); provided, respectivelyhowever, that if the aggregate amount of Losses exceeds 2% the Threshold, then the Seller Indemnifying Parties will be obligated for all of such Losses that are in excess of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitledThreshold, subject to the other terms of this Article V.
(b) The obligations of the Seller Indemnifying Parties under Section 9.4(b)(ii5.2(a), in the aggregate, will not exceed an amount equal to indemnification $4,000,000 (the "Cap"), subject to the other terms of this Article V.
(c) Buyer will not have any obligation under Section 5.3(a), unless and until the aggregate amount of Losses for (x) 50% which Buyer is obligated thereunder exceeds the Threshold; provided, however, that if the aggregate amount of Losses exceeds the Threshold, then Buyer will be obligated for all of such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses that are in excess of 2% the Threshold, subject to the other terms of the Purchase Price. All Indemnifiable Losses arising this Article V.
(d) Buyer's obligations under Section 9.2(a)(iv) shall be deemed 5.3(a), in the aggregate, will not exceed an amount equal to be a single item for purposes the Cap, subject to the other terms of the foregoing.this Article V.
(iie) Except as provided in Section 9.4(b)(iii)Notwithstanding the foregoing terms of this Section, neither Seller nor Buyer shall the Indemnified Parties will be required entitled to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i)recover for, respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) Threshold and Section 9.4(b)(ii) shall the Cap will not apply to Indemnifiable to, any Losses arising out of Section 5.2(a), in connection with or related to: (i) fraud or willful misconduct; (ii) intentional misrepresentation; or (iii) any breach of any of the representations and warranties in Section 5.13.1(a) (Due Organization), 5.2Section 3.1(b) (Capacity, 5.8Authorization), 5.13Section 3.1(f) (No Conflict or Violation), 5.17Section 3.1(h) (Title to Assets), 6.13.1(i) (Taxes), 6.2Section 3.1(r) (Brokers' Fees), Section 3.2(a) (Due Organization and Good Standing), Section 3.2(b) (Authorization and Execution), and Section 3.2(e) (Brokers' Fees) (each a "Fundamental Representation" and collectively, the "Fundamental Representations").
(f) Payments by an Indemnifying Party pursuant to Section 5.2 and Section 5.3 shall be limited to the amount of any Losses that remain after deducting from such Losses any insurance proceeds, and any indemnity, contribution or 6.5other similar payment actually recovered by the Indemnified Parties from any third party with respect to such claim. In the event any Indemnified Party is entitled to any insurance proceeds in respect of any Losses for which any Indemnified Party is entitled to indemnification pursuant to this Article V, but the Indemnified Parties shall use commercially reasonable efforts to obtain, receive or realize such proceeds. Except as provided below in part (g), the Indemnifying Party shall not defer payment of Losses to the Indemnified Party pending the resolution of insurance claims or other potential or actual third party recovery sources, provided, however, that in the event that any such insurance proceeds or other third-party recoveries are realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds or other third-party recoveries relate, appropriate refunds shall be made promptly by the Indemnified Parties to the Indemnifying Party of all or the relevant portion of any indemnification payment made to Indemnified Parties with respect to such claim.
(g) In the event that an indemnification claim with respect to a Loss by a Buyer Party would reasonably be expected to be covered by insurance under any tail policy obtained by the Seller Entities in connection with the transactions contemplated herein, the Buyer and the Seller Entities will cooperate to promptly assert such claim to the applicable insurer with respect to such tail policy, and the Buyer and the Seller Entities will use commercially reasonable efforts to seek the recovery of the Loss through such tail policy or if a Loss by a Buyer Party would reasonably be expected to be covered by warranties or indemnitees from third party manufacturers or suppliers of goods manufactured, sold or serviced by the Acquired Business, the Buyer and Seller Entities will cooperate to promptly assert such claim to the applicable manufacturer or supplier to seek recovery for such Loss. The Parties agree that no case shall either Seller or Buyer Party will be required to make payments pursue litigation or incur any expense in connection with the foregoing actions. The Indemnifying Party may defer paying the Buyer Party's claim for indemnification from the Sellers hereunder with respect to insurance claims, until the earlier of (i) the date on which the insurer makes payment with respect to such insurance claim and such payment is delivered to the Buyer Party (with the amount of such insurance recovery received by the Buyer Party being set off against the amount of the indemnification claim pursuant to Section 9.2(a)(i) or Section 9.2(b)(i5.4(f)), respectively(ii) in the event that the insurance carrier delivers any notice of claim denial, the date on which the Seller Entities and Buyer mutually agree in an aggregate amount writing not to continue seeking such insurance claim (provided the Seller Entities may continue to pursue the claim in excess of one hundred percent good faith), or (100%iii) the date that is six (6) months after the date of the Purchase Priceassertion of such claim to the insurance carrier with respect to such tail policy. The Indemnifying Party may defer paying the Buyer Party's claim for indemnification from the Sellers hereunder with respect to warranty claims and claims for indemnification from manufacturers or suppliers, until the earlier of (1) the date on which the applicable manufacturer or supplier makes payment with respect to such claim, (2) the date any such manufacturer or supplier denies its obligation to pay such claim or (3) the date that is six (6) months after the date of assertion of such claim to the applicable manufacturer or supplier. Any such indemnification claim will be deemed to have been made when initially asserted for purposes of any applicable survival period and a reserve against escrow, notwithstanding any deferral period.
(ch) Notwithstanding anything contained in this Agreement to the contrary, except for purposes of determining the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express inaccuracy or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty for purposes of Section 5.2(a), and for purposes of calculating the amount of Losses of the Buyer Parties, each representation and warranty of the Sellers and Seller Entities shall be read without regard and without giving effect to any materiality or Material Adverse Effect or similar standard or qualification contained therein (as if such standard or qualification were deleted from such representation or warranty).
(i) Any Loss subject to indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach or violation of more than one representation, warranty, covenant or agreement, and to the extent that such Loss is reflected as a Liability on the Final Closing Balance Sheet and included in the Closing Working Capital calculation, there shall be no recovery of such Loss through a claim of a breach of a representation or warranty, covenant or agreement to which such Loss may have otherwise related.
(j) The Buyer Parties' right to indemnification pursuant to Article V will be: (i) first, satisfied from the Escrow Fund (to the extent available) pursuant to the Escrow Agreement, after satisfaction of the Threshold, (ii) second, satisfied from any vested Buyer Shares that have been issued to LTD pursuant to this Agreement, individually and (iii) third, from the Seller Indemnifying Parties; provided, however, that the Buyer Parties shall be entitled to recover directly from the Seller Indemnified Parties for any Losses which any Buyer Party is entitled to indemnification under Section 5.4(e)(i) and (ii) or in under Section 5.2(a) for any breach of the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.Section 3.1(i);
(ek) In addition For avoidance of doubt, the Buyer Parties will be entitled to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areasfully recover for, and all other relevant factorsthe Cap and Threshold shall not apply to, any Losses arising out of Sections 5.2(b)-(e) herein; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost aggregate liability of the investigation Seller Indemnifying Parties for Losses arising out of Sections 5.2(b)-(e) herein will not exceed the Purchase Price, including the aggregate value on the Effective Date of the Buyer Shares (the "Full Purchase Price"), except for Losses arising out of Section 5.2(e), for which there shall be no limit or remediation cap on the aggregate liability of such contamination, the Seller shall not be responsible for any such increase in costsIndemnifying Parties.
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Samples: Asset Purchase Agreement (Superior Uniform Group Inc)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained else in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and Buyer Parties shall only be entitled to indemnification from the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect Indemnifying Parties pursuant to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), Article VII only if and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to extent that the Closing that any breach by Seller amount of any representation or warranty in this Agreement, individually or all Indemnified Losses incurred in the aggregate with any other breaches by the Buyer Parties exceeds Five Hundred Thousand dollars ($500,000) (the “Deductible Amount”). If the aggregate amount of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no all Indemnified Losses incurred by the Buyer Indemnitees shall Parties for which Indemnification Claims have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to been made by Buyer within the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty applicable survival period set forth in Section 5.12: 7.3(a) exceeds in the aggregate the Deductible Amount, the Buyer Parties shall be entitled to indemnification for all Buyer Indemnified Losses actually incurred and for which Indemnification Claims are made within the applicable survival period, in excess of the Deductible Amount; provided, however, that, subject to the exceptions set forth in Section 7.3(c) below, in no event and under no circumstance shall the maximum aggregate cumulative liability of the Seller Parties for any and all Buyer Indemnified Losses exceed the sum of $35,100,000 (ithe “Indemnification Cap”), provided, however, that, subject to the exceptions set forth in Sections 7.3(c)(i) and 7.3(c)(iii) below, all Buyer Indemnified Losses with respect to which any Buyer Party is determined, in the manner set forth in Section 7.5 below, to be entitled to indemnification from the Seller Parties pursuant to this Article VII shall be paid and satisfied, in accordance with the terms and provisions of Sections 7.4 and 7.5 hereof, solely and exclusively out of and only to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on funds in the industrial use General Escrow Fund, even if the total of such funds is less than the amount of the relevant facility or property, proximity Indemnification Cap due to distributions therefrom made pursuant to Section 7.4 hereof and the applicable provisions of commercial and residential areasthe Escrow Agreement, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if no Seller Party shall have any contamination at personal liability to any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation Buyer Parties with respect to or remediation of such contamination, Seller shall not be responsible for any such increase Buyer Indemnified Losses, except as set forth in costsSection 7.3(c)(1) and Section 7.3(c) (iii).
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Limitations on Indemnification. (a) A No Party may assert a claim for otherwise entitled to indemnification hereunder only under this Agreement shall be indemnified pursuant to this Agreement to the extent that such party's Losses are increased or extended by the Indemnitee gives notice willful misconduct, violation of applicable Law, bad faith or gross negligence of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representationParty. In addition, warranty or covenant on which such claim is based, if any, except as set forth in Section 9.110.7(b), no Party shall be entitled to indemnification under this Article 10 unless the aggregate amount of such party's Losses, at any particular time, exceeds $75,000 in the aggregate (including Losses irrespective of whether or not previously asserted), in which case the Party shall be entitled to all such Losses.
(b) Notwithstanding Losses relating to the following matters shall be exempt from, and shall not count towards the aggregation of Losses necessary for a recovery pursuant to or towards the aggregation of Losses for purposes of calculating, the dollar limitation set forth in Section 10.7(a), such that the Buyer Indemnitees shall be able to recover the full amount of any other provision Losses arising directly or indirectly by reason of this Article IXliabilities or claims arising from the following:
(i) Except as provided in Those Tax matters specifically identified on Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv10.7(b) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same factsWiderThan Disclosure Memorandum, events or circumstances where to the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where extent not reserved on the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% face of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.Ztango Financial Statements;
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any Any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty of a Participating Ztango Stockholder contained in Article 6;
(iii) Any amount by which the actual Ztango Transaction Expenses exceed $325,000; provided, however, that WiderThan shall not be entitled to indemnification under this AgreementSection 10.7(b)(iii) unless the aggregate amount of WiderThan's Losses covered by this Section 10.7(b)(iii), individually or at any particular time, exceeds $5,000 in the aggregate with any other breaches (including Losses irrespective of Seller’s representations and warranties whether or not previously asserted), in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees which case WiderThan shall have any claim or recourse against Seller or any of its Affiliates with respect be entitled to all such breach, under this Article IX or otherwise.Losses; and
(eiv) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any Any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs8.2(n).
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Limitations on Indemnification. (ai) A Party may assert a claim for indemnification hereunder only Notwithstanding anything to the extent contrary in this Section 8, in respect of any indemnification obligation of Parent or the Indemnitee gives notice of such claim Shareholder pursuant to Section 8(b) hereof (other than any indemnification for Adverse Consequences resulting from, arising out of, relating to, in the Indemnifying Party in accordance with Section 9.3 prior to nature of, or caused by the expiration breach (or alleged breach) by Parent or the Shareholder of the applicable survival period with respect representations or warranties contained in Sections 3(a), 4(a)-(e), 4(k), 4(y), 4(aa) and the last sentence of Section 4(e) and the covenants contained in Sections 7(j) and 7(p), the last sentence of Section 8(b)(ii) and Sections 8(b)(iv), (v), (vii) and (viii) to the representation, warranty or covenant on which such claim is based, if any, set forth in this Section 9.1.
(b8(f) Notwithstanding any other provision of this Article IX:shall not apply):
(i) Except as provided in Section 9.4(b)(iii), in no event neither Parent nor Shareholder shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate cumulative amount of all Indemnifiable Losses any Adverse Consequences for which are incurred or suffered by the Buyer Indemnitees a claim for indemnification has been made pursuant to this Article 8 against Parent or the Seller IndemniteesShareholder exceeds $100,000 (the "Basket"), respectively, exceeds 2% of at which point Parent and the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, Shareholder shall be entitled, subject to Section 9.4(b)(ii), to indemnification responsible for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses Adverse Consequences in excess of 2% $75,000; and provided, further that for purposes of determining claims for which Adverse Consequences may be applied to the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) Basket the representations and warranties contained herein shall be deemed not to be a single item include any qualifications based on materiality and Knowledge, and (ii) the aggregate indemnification obligations for purposes of Parent and the foregoingShareholder shall not exceed $5,000,000.
(ii) Except as provided Notwithstanding anything to the contrary in this Section 8, in respect of any indemnification obligation of Buyer pursuant to Section 8(c) hereof (other than any indemnification for Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by the breach (or alleged breach) by Buyer of the representations or warranties contained in Section 9.4(b)(iii3(b)(i)-(iv), neither Seller nor and the covenant contained in Section 7(o) to which this Section 8(f) shall not apply):
(i) Buyer shall not be liable unless and until the aggregate cumulative amount of any Adverse Consequences for which a claim for indemnification has been made pursuant to this Article 8 against Buyer exceeds the Basket, at which point Buyer shall be required to make payments responsible for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount all Adverse Consequences in excess of twelve $75,000; and one-half percent (12.5%) provided, further that for purposes of determining claims for which Adverse Consequences may be applied to the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of Basket the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation herein shall be limited deemed not to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) include any qualifications based on the industrial use of the relevant facility or property, proximity of commercial materiality and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsKnowledge.
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Limitations on Indemnification. (a) A Party Notwithstanding anything to the contrary contained in this Agreement, (i) a NexVerse Indemnified Person may assert not make a claim for indemnification hereunder only Damages until the aggregate amount of claims by NexVerse Indemnified Persons exceeds five hundred thousand dollars ($500,000), at which time and thereafter the NexVerse Indemnified Persons shall be entitled to recover all such Damages, and (ii) a Seller Indemnified Person may not make a claim for Damages (x) under Section 8.01(b)(i) until the extent aggregate amount of claims by Seller Indemnified Persons under Section 8.01(b)(i) exceeds five hundred thousand dollars ($500,000), and (y) under Section 8.01(b)(ii) until the Indemnitee gives notice aggregate amount of claims by Seller Indemnified Persons under Section 8.01(b)(ii) exceeds one hundred fifty thousand dollars ($150,000), at which time in each such claim instance and thereafter the Seller Indemnified Persons shall be entitled to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which recover all such claim is based, if any, set forth in Section 9.1Damages.
(b) Notwithstanding any other provision anything to the contrary contained in this Agreement, (1) the aggregate liability of the Sellers pursuant to this Article IX:
VIII shall not exceed seven million five hundred thousand dollars (i$7,500,000) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification the aggregate liability of NexVerse pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) this Article VIII shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(iexceed seven million five hundred thousand dollars ($7,500,000), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything to the contrary contained in this Agreement to Agreement, the contraryaggregate Damages incurred by the Sellers shall, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedulespurposes of Section 8.01(b)(ii) above, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever equal, (including i) with respect to SellerDamages incurred by the Sellers, the BusinessDamages incurred by the Sellers arising out of, based on or resulting from such claims and (ii) with respect to Damages incurred by NexVerse, the Purchased Assetsproduct of (x) the Damages incurred by NexVerse arising out of, based on or resulting from such claims and (y) the Assumed Obligations or percentage obtained by dividing the number of outstanding shares of NexVerse capital stock held by ECI and its affiliates immediately following the closing of the transactions contemplated by this Agreement)the Series C Financing Documents by the total number of outstanding shares of NexVerse capital stock immediately following such closing, and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposein both cases in an as-converted to common basis.
(d) In the event that Buyer proceeds Notwithstanding anything to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty contrary contained in this Agreement, individually or in the aggregate with any other breaches form of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates remedy with respect to Damages under Section 8.01(a) and 8.01(b) shall be as follows:
(i) In the case of a claim or claims by NexVerse Indemnified Persons pursuant to Section 8.01(a) for aggregate Damages of up to three million five hundred thousand dollars ($3,500,000) (the “Cash Indemnity Threshold”), the remedy for all such breachDamages shall be in the form of the cancellation of shares of NexVerse Common Stock issued to the Sellers (“Indemnity Shares”) having a value equal to such Damages, under this Article IX or otherwisebased upon a price per share of $0.1716 (the “Stipulated Value”).
(eii) In addition the case of a claim or claims by NexVerse Indemnified Persons pursuant to Section 8.01(a) for aggregate Damages in excess of the Cash Indemnity Threshold, the remedy for all such Damages (from the first dollar of Damages) shall be the pursuit of all remedies at law for breach of this Agreement available to such NexVerse Indemnified Person for the full amount of Damages, subject to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty on aggregate liability set forth in Section 5.12: 8.02(b) above.
(iiii) In the case of a claim or claims by Seller Indemnified Persons pursuant to Section 8.01(b) for aggregate Damages up to the extent Cash Indemnity Threshold, the remedy for all such Damages shall be in the form of the issuance by NexVerse of Indemnity Shares having a value equal to such Damages, based upon the Stipulated Value.
(iv) In the case of a claim or claims by Seller Indemnified Persons pursuant to Section 8;01(b) for aggregate Damages in excess of the Cash Indemnity Threshold, the remedy for all such Damages (from the first dollar of Damages) shall be the pursuit of all remedies at law for breach of this Agreement available to the Seller Indemnified Persons for the full amount of Damages, subject to the limitations on liability set forth in Section 8.02(b) above.
(v) In order to effectuate the provisions of this paragraph (d) relating to the form of remedy, the NexVerse Indemnified Persons or the Seller Indemnified Persons, as applicable, Seller’s indemnification obligation shall be limited to have until the cost first anniversary of the least restrictive standard or remedy acceptable Closing to each applicable Governmental Entity initiate pursuit of their claims for indemnification under applicable Environmental Law (including engineering or institutional controls) based on this Section 8.01, notwithstanding the industrial use requirement to comply with the notice provisions of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere Section 8.03 with operations at the affected facility and (ii) if any contamination at any Real Property that is subject respect to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in coststhird party claims.
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Limitations on Indemnification. (a) A Party may assert a claim The indemnification provided for indemnification hereunder only in Sections 9.01 and 9.02 shall be subject to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IXfollowing limitations:
(i) Except as provided in Section 9.4(b)(iii), in no event The Stockholders shall either Party not be liable obligated to pay any amounts for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items under this Article IX arising out of the same factsany Losses based upon, events arising out of or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) otherwise in respect of each individual item where any inaccuracy or breach disclosed in writing to GRS or as to which GRS (or its directors or executive officers) had actual knowledge at or prior to the Indemnifiable Loss relating thereto Closing.
(ii) Neither GRS, the Company nor the Stockholders shall be obligated to pay any amounts for indemnification under this Article IX, except those based upon, arising out of or otherwise in respect of Sections 3.02, 3.13, 3.21, 3.28, 5.22, 5.29, 9.01 (ii) and (iii), 11.01 and 11.02 and Article IV hereof (the "Basket Exclusions"), until the aggregate indemnification payments, exclusive of the Basket Exclusions, equals one percent (1%) of the Purchase Price (the "Basket Amount"), whereupon GRS, or the Company and Stockholders, as the case may be, shall be obligated to pay any indemnification payments, including the Basket Amount, in full. It is equal to expressly understood that the Basket Amount shall serve as a "trigger" for indemnification and not as a "deductible" (for example, if the indemnity claims for which GRS or greater than the Stockholders would, but for the provisions of this subparagraph (ii), be liable is in the aggregate amount of $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 21% of the Purchase Price is $70,000, the Stockholders would then be liable for the entire $100,000 and (ynot just $70,000). This Section 9.04(ii) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall will not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor which any other Person is making party had actual Knowledge at any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller time prior to the Closing that date on which such representation and warranty is made or any intentional breach by Seller any party of any representation covenant or warranty in this Agreementobligation, individually and GRS or in the aggregate with any other breaches of Seller’s representations Stockholders, as the case may be, will be jointly and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates severally liable for all damages with respect to such breach, under this Article IX or otherwisebreaches.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
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Samples: Stock Purchase Agreement (General Roofing Services Inc)
Limitations on Indemnification. All indemnification obligations of a Party that is required to provide indemnification under this Section 9 (each, an “Indemnifying Party”) to either one or more Purchaser Indemnitees or one or more Seller Indemnitees, as applicable (each, an “Indemnified Party”), shall be subject to the following limitations:
(a) A Party may assert a claim for No indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration payments will be made by or on behalf of the applicable survival period with Seller under this Agreement in respect to of any individual claim or series claims having the representationsame nature or origin where the losses relating thereto are less than $25,000, warranty or covenant on which and such claim is based, if any, set forth items less than $25,000 will not be aggregated for purposes of calculating the Deductible in Section 9.1clause (b) below.
(b) Seller shall not be liable to the Purchaser Indemnitees for indemnification under Section 9.2(a) until the aggregate amount of all Damages in respect of indemnification under Section 9.2(a) exceeds $100,000.00 (the “Deductible”), in which event Seller shall only be required to pay or be liable for Damages in excess of the Deductible. The aggregate amount of all Damages for which Seller shall be liable pursuant to Section 9.2(a) shall not exceed $2,500,000.00 (the “Cap”).
(c) Notwithstanding any other provision the foregoing, the limitations set forth in Section 9.4(a) shall not apply to Damages based upon, arising out of, with respect to or by reason of this Article IX:
(i) Except as provided any inaccuracy or breach of any Fundamental Representation, (ii) any inaccuracy or breach of the representations and warranties contained in Section 9.4(b)(iii6.13 (Taxes) or (iii) Damages related to indemnification under Sections 9.2(b), 9.2(c), or 9.2(d); provided, however, that notwithstanding the foregoing, the aggregate total amount in no event shall either Party respect of which the Seller will be liable for indemnification to indemnify, defend and hold harmless the Purchaser Indemnitees pursuant to Section 9.2(a)(i), Section 9.2(a)(iv9.2(a) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of will not exceed the Purchase Price.
(iiid) The limitations specified in Section 9.4(b)(iNOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AND OTHER THAN IN CONNECTION WITH A THIRD PARTY ACTION PURSUANT TO WHICH SUCH DAMAGES ARE FINALLY AWARDED, NO PARTY SHALL BE LIABLE FOR, AND NO PARTY SHALL SEEK, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF REVENUE, LOST SALES OR AMOUNTS CALCULATED AS A MULTIPLE OF EARNINGS, PROFITS, REVENUE, SALES OR OTHER MEASURE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE.
(e) Each Indemnified Party shall take, and Section 9.4(b)(ii) shall not apply cause its Affiliates to Indemnifiable Losses arising out take, all reasonable steps to mitigate any Damages upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach or inaccuracy that gives rise to such Damages.
(f) Notwithstanding anything to the contrary in this Agreement, when determining the amount of Damages and whether there has been a breach of any representation or warranty, such representation or warranty shall be read without regard and without giving effect to any materiality, Material Adverse Effect, or other similar standard or qualification contained in such representation or warranty, except (i) where any such provision requires disclosure of lists of items of a material nature or above a specified threshold in which case such qualifier shall not be deleted for purposes of determining the lists of items which must be disclosed and any related claim for a breach of representation or warranty and (ii) in the case of the representations and warranties contained in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i6.4 (Financial Statements), respectively, in an aggregate amount in excess of one hundred percent Section 6.5 (100%Books and Records) of the Purchase Priceand Section 6.14 (No Material Adverse Effect).
(cg) Notwithstanding anything contained in No Person will be entitled to indemnification under this Agreement with respect to any breach of, or inaccuracy in, any representation, warranty or covenant by the Seller or the Purchasers if, on the Closing Date, the Person seeking such indemnification had knowledge of the existence of such breach or inaccuracy.
(h) For the avoidance of doubt, and notwithstanding anything herein to the contrary, except in no event shall any Indemnified Party be entitled to indemnification more than once for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made Damages incurred by such Indemnified Party or its Affiliates, officers, directors, employees, agentshereunder by reason of the state of facts giving rise to such Liability constituting a breach of, or representativesinaccuracy in, including the implied warranty more than one representation, warranty, covenant or agreement, or to recovery in excess of merchantability and any implied warranty of fitness for a particular purposeDamages incurred upon, sustained by, or imposed upon such Indemnified Party.
(di) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller The amount of any representation and all Damages for which indemnification is provided pursuant to this Agreement will be net of any Tax benefit to which an Indemnified Party is entitled by reason of payment of such Liability (taking into account any Tax cost or warranty reduction in this Agreementsuch Tax benefits by reason of receipt of the indemnification payment) and any amounts of any insurance proceeds, individually indemnification payments, contribution payments or reimbursements receivable by, or payable in kind to, the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates Indemnified Party with respect to such breachDamages or any of the circumstances giving rise thereto. If, at any time following payment in full by the Indemnifying Party of any amounts of Damages due under this Article IX Agreement, the Indemnified Party receives any insurance proceeds, indemnification payments, contribution payments or otherwise.
(e) In addition reimbursements relating to the other limitations set forth circumstances giving rise to such Damages, the Indemnified Party will promptly remit to the Indemnifying Party such proceeds, payments or reimbursements in this Article IX, with respect an amount not to any claim for exceed the amount of the corresponding indemnification regarding any breach payment made by the Indemnifying Party. The Parties will use (and will cause their Affiliates to use) commercially reasonable efforts to collect the proceeds of any representation and warranty set forth available insurance which would have the effect of reducing any Damages (in Section 5.12: (i) to which case the extent applicable, Seller’s indemnification obligation shall be limited to net proceeds thereof will reduce the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsDamages).
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a There shall be no liability for Damages under Section 9.1(a)(i) or (ii) for breaches of representations, warranties, covenants and agreements unless and until (i) the amount of Damages for each claim or for indemnification hereunder only multiple, similar claims arising from related facts or circumstances asserted by the Buyer Indemnified Parties exceeds Twenty-Five Thousand Dollars ($25,000) (the “Materiality Basket”), but in the event the Materiality Basket is exceeded, the Buyer Indemnified Parties shall be entitled to the extent the Indemnitee gives notice all of such Damages from such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration or similar claims (irrespective of the applicable survival period Materiality Basket), and (ii) the aggregate Damages for all such claims (without reference to any and all claims excluded by the Materiality Basket) exceeds Seven Hundred Fifty Thousand Dollars ($750,000) (the “Indemnification Threshold”); provided, however, that after such amount of Damages disregarded as a result of operation of clause (ii) immediately preceding exceeds the Indemnification Threshold, only Damages in excess of the Indemnification Threshold shall be recoverable by the Buyer Indemnified Parties unless otherwise excluded by the Materiality Basket. The limitations set forth in this Section 9.3(a) shall not apply to (i) breaches of the Seller Fundamental Representations, (ii) breaches of the covenants set forth in Sections 1.4, 6.6, 6.7, 9.1(a)(iv) and 9.1(a)(v) and Article X, (iii) claims pursuant to Section 9.1(a)(iv), or (iv) claims based on fraud, with respect to which, in each case, all Damages shall be recoverable from the first dollar.
(b) There shall be no liability for Damages under Section 9.1(b) for breaches of representations, warranties, covenants and agreements unless and until (i) the amount of Damages for each claim or for multiple, similar claims arising from related facts or circumstances asserted by the Seller Indemnified Parties exceeds the Materiality Basket, but in the event the Materiality Basket is exceeded, the Seller Indemnified Parties shall be entitled to all of such Damages from such claim or similar claims (irrespective of the Materiality Basket), and (ii) the aggregate Damages for all such claims (without reference to any and all claims excluded by the Materiality Basket) exceeds the Indemnification Threshold; provided, however, after such amount of Damages disregarded as a result of operation of clause (ii) immediately preceding exceeds the Indemnification Threshold, only Damages in excess of the Indemnification Threshold shall be recoverable by the Seller Indemnified Parties unless otherwise excluded by the Materiality Basket. The limitations set forth in this Section 9.3(b) shall not apply to (i) breaches of the Buyer Fundamental Representations, (ii) breaches of the covenants set forth in Sections 1.4, 6.6, 6.7, 6.8, 6.12 and Article X, or (iii) claims based on fraud, with respect to which, in each case, all Damages shall be recoverable from the first dollar.
(c) The indemnification obligations of the Sellers under Section 9.1(a) shall be limited to an amount equal to Forty-Two Million Three Hundred Fifty Thousand Dollars ($42,350,000). Notwithstanding any other provisions hereof, the limitations in this Section 9.3(c) shall not apply to (i) breaches of the Seller Fundamental Representations and the indemnification obligations set forth in Sections 9.1(a)(iv) and 9.1(a)(v), with respect to which the indemnification obligations of the Sellers, together with all other indemnification obligations of the Sellers under Section 9.1(a), shall be limited to the Purchase Price or (ii) claims based on fraud, with respect to which, in each case, no Damages shall be counted in determining whether the threshold in this Section 9.3(c) has been exceeded.
(d) The indemnification obligations of the Buyer under Section 9.1(b) shall be limited to an amount equal to Forty-Two Million Three Hundred Fifty Thousand Dollars ($42,350,000). Notwithstanding any other provisions hereof, the limitations in this Section 9.3(d) shall not apply to (i) breaches of the Buyer Fundamental Representations, with respect to which the indemnification obligations of the Buyer shall be limited to the Purchase Price, or (ii) claims based on fraud, with respect to which, in each case, no Damages shall be counted in determining whether the threshold in this Section 9.3(d) has been exceeded.
(e) For purposes of determining the amount of any Damages with respect to any breach of any representation, warranty or covenant on which for purposes of indemnification under this Article IX, any qualification or limitation of a representation, warranty or covenant by reference to materiality of matters stated therein or as to matters having or not having a “Material Adverse Effect,” or words of similar effect, shall be disregarded. The indemnification obligations of the Sellers and the rights and remedies that may be exercised by a Buyer Indemnified Party shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Buyer Indemnified Parties or any of their Representatives, including, without limitation, any notice given to the Buyer pursuant to Section 6.5. No Seller shall be entitled to contribution from, subrogation to or recovery against the Company with respect to any payments that are made for the account of such claim is basedSeller to a Buyer Indemnified Party pursuant to this Article IX, if any, set forth in except to the extent provided under Section 9.19.3(h).
(bf) Notwithstanding Each Indemnified Party shall reimburse any other provision Indemnifying Party for amounts paid to such Indemnified Party by such Indemnifying Party with respect to Damages pursuant to the terms of this Agreement to the extent that such Indemnified Party receives any insurance proceeds with respect to such Damages. An Indemnifying Party’s liability for Damages shall be reduced by any Tax benefit actually realized with respect to such Damages.
(g) Each Party agrees to take commercially reasonable steps to mitigate their respective Damages upon and after becoming aware of conditions giving rise to Damages that are indemnifiable hereunder.
(h) Upon making any payment to an Indemnified Party for an indemnification claim under this Article IX:, such Indemnifying Party shall be subrogated to the extent of such payment to any rights that such Indemnified Party may have against any third parties with respect to the subject matter underlying such claim.
(i) Except In calculating any Damages, there shall be deducted any indemnification, contribution or other similar payment actually recovered by the Indemnified Party from any third party with respect thereto so long as provided such recovered claim has been finally determined and is not subject to appeal. If and to the extent any Buyer Indemnified Party suffers or incurs Damages as a consequence of failure to collect any accounts receivable (and whether or not such Damages are indemnified hereunder or subject to any limitation on indemnification hereunder) any amount subsequently collected on such accounts receivable shall be deducted from any subsequent Damages to any Buyer Indemnified Parties that are subject to payment hereunder to such Buyer Indemnified Parties (after giving effect to all limitations on indemnification hereunder).
(j) All indemnification payments under this Article IX shall be calculated without duplication in Section 9.4(b)(iiiany case in which more than one of the Indemnified Parties seeks indemnification for the same Damages or in the event that any events or circumstances giving rise to a breach of a particular representation or warranty of any Party, contained in this Agreement or any other agreement or any certificate executed and delivered by any Party, also constitutes a breach of one or more other representations or warranties of any Party contained in this Agreement or any other agreement or any certificate executed and delivered by any Party. The Indemnified Parties shall not be entitled to indemnification under this Article IX for any Damages if and to the extent that such Damages were taken into account (such as being applied as a reduction in current assets or an increase in current liabilities), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out the determination of the same facts, events Closing Adjustment or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal any other adjustment that may be made to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iiik) Damages shall not include any special, exemplary or punitive damages, and no Party shall be liable for any special, exemplary or punitive damages under this Article IX, except to the extent that such special, exemplary or punitive damages are asserted and recovered by a third party.
(l) The limitations specified amount of any Damages for which any Indemnified Party would otherwise become entitled to be indemnified under this Article IX shall be reduced by the amount, if any, of any specific accruals or reserves for such Damages reflected in Section 9.4(b)(ithe Closing Working Capital Statement.
(m) and Section 9.4(b)(ii) The Indemnified Parties shall not apply be entitled to Indemnifiable Losses arising out of recover any breach Damages under this Article IX to the extent that such Damages arose primarily from the intentional wrongdoing of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase PriceIndemnified Parties.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mantech International Corp)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except Anything in this Agreement to the contrary notwithstanding, no indemnification payment shall be made to the Purchaser Indemnified Parties until the amounts which the Purchaser Indemnified Parties would otherwise be entitled to receive as provided in Section 9.4(b)(iiiindemnification under this Agreement aggregate at least $100,000 (the "Purchaser Indemnification Threshold"), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of at which time the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitledPurchaser Indemnified Parties shall, subject to Section 9.4(b)(ii5.3(d)(ii), be indemnified dollar-for-dollar for the full amount of such indemnification, without any deduction for the Purchaser Indemnification Threshold; provided, that the limitations set forth in this Section 5.3(d)(i) shall not apply to indemnification for claims made with respect to Sections 5.3(a)(i) (x) 50% solely with respect to a breach of all such Indemnifiable Losses up to 2% of Sections 3.1, 3.2, 3.10, 3.11, 3.14, 3.25, 3.26, 3.30 or 3.35), 5.3(a)(ii), 5.3(a)(iii), 5.3(a)(v), 5.3(a)(vi), 5.3(a)(viii), 5.3(a)(ix), 5.5, 5.6(b), 7.1 or 7.2 or claims based upon fraud and the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) Purchaser Indemnified Parties shall be deemed indemnified dollar-for-dollar to be a single item for purposes the extent of the foregoingany Losses with respect to any such matters.
(ii) Except as provided set forth in Section 9.4(b)(iii5.3(d)(iii), neither Seller nor Buyer anything in this Agreement to the contrary notwithstanding, no indemnification payment shall be required to make payments for indemnification pursuant be made to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount the Purchaser Indemnified Parties in excess of twelve $7,000,000 with respect to (a) section 5.3(a)(i) with respect to a breach by Sellers of any representation or warranty set forth herein, or (b) Section 5.3(a)(iv) with respect to any Losses that arise solely from a products liability claim by a customer asserting damages arising out of a defect in a product sold by the Company; provided, however, that the foregoing limitation shall be $5,000,000 for the indemnification provisions set forth in (I) Section 5.3(a)(i) with respect to a breach of Section 3.29, unless such matter was required to be disclosed on Schedule 3.29 hereof and one-half percent was not so disclosed, and (12.5%II) Section 5.3(a)(iv) with respect to any Losses that arise solely from a products liability claim by a customer asserting damages arising out of a defect in a product sold by the Purchase PriceCompany, provided that such claim was not required to be disclosed on Schedule 3.6 or constitutes a breach of Section 3.29 on the date hereof (each of (I) and (II) being a "Product Liability Indemnification"), if, in the case of either (I) or (II), the Company is actually being insured against such Losses (in whole or in part) under the insurance policies insuring the Company with respect to such matter.
(iii) The limitations specified set forth in Section 9.4(b)(i) and Section 9.4(b)(ii5.3(d)(ii) shall not apply to Indemnifiable indemnification claims made with respect to Section 5.3(a)(i) (solely with respect to a breach of Sections 3.1, 3.2, 3.10, 3.11, 3.14, 3.25, 3.26, 3.30, or 3.35) or claims based upon fraud and the Purchaser Indemnified Parties shall be indemnified dollar-for-dollar to the extent of any Losses arising out of with respect to any such matters.
(iv) Anything in this Agreement to the contrary notwithstanding, any indemnification payment required to be made to the Purchaser Indemnified Parties for Losses for any breach of a representation or warranty hereof shall be reduced by an amount up to and including $300,000 in the aggregate to the extent that the Losses attributable to such breach have already been reflected in an adjustment of Purchase Price pursuant to Section 2.3(a) or, 2.3(b) or 2.3(d) hereof. For the avoidance of doubt, any and all Losses shall count and be applied towards the Purchaser Indemnification Threshold and the Purchaser Indemnification Threshold shall not apply to any Losses exceeding $100,000 hereunder notwithstanding that the amount of indemnification available in respect of such Losses is reduced pursuant to this Section 5.3(d)(iv) or that such Losses impact Tangible Net Worth. By way of example, if there is an adjustment of Purchase Price pursuant to Section 2.3(a) or, 2.3(b) or 2.3(d) hereof in the amount of $80,000 and Losses of $120,000 relating to the circumstances creating such adjustment as a result of a breach of one or more of the representations and warranties set forth herein, Purchaser would be entitled to payment of $40,000 in Losses notwithstanding the Purchaser Indemnification Threshold.
(v) Anything in this Agreement to the contrary notwithstanding, no indemnification payment shall be made to the Seller Indemnified Parties until the amounts which the Seller Indemnified Parties would otherwise be entitled to receive as indemnification under this Agreement aggregate at least $100,000 (the "Seller Indemnification Threshold"), at which time the Seller Indemnified Parties shall be indemnified dollar-for-dollar for the full amount of such indemnification, without any deduction for the Seller Indemnification Threshold; provided, that the limitations set forth in this Section 5.15.3(d)(v) shall not apply to indemnification claims made with respect to Sections 5.3(b)(ii), 5.2, 5.8, 5.13, 5.17, 6.1, 6.25.3(b)(iii), or 6.5a claim based upon fraud and the Purchaser Indemnified Parties shall be indemnified dollar-for-dollar to the extent any Losses with respect to such matters exist.
(vi) Anything in this Agreement to the contrary notwithstanding, but in no case indemnification payment shall either Seller or Buyer be required to make payments for indemnification pursuant be made to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount the Seller Indemnified Parties in excess of $5,000,000 with respect to (a) Section 5.3(b)(i) with respect to a breach by Sellers of any representation or warranty set forth herein, or (b) Section 5.3(b)(iv) with respect to any Losses that arise solely from a products liability claim by a customer asserting damages arising out of a defect in a product sold by the Company; provided, that such limitation shall not apply on a claim based upon fraud and the Seller Indemnified Parties shall be indemnified dollar-for-dollar to the extent any Losses with respect to such matters exist.
(vii) The extent to which any Indemnified Party shall be entitled to indemnification hereunder shall be reduced by the amount of any insurance proceeds received by the Indemnified Party on account of the claim that the Indemnified Party is seeking to be indemnified for, irrespective of the identity of the party that paid for such insurance.
(viii) The Purchaser and AHI shall seek coverage from their and the Company's respective insurance companies for matters that may give rise to Losses resulting from a Product Liability Indemnification. To the extent that proceeds from insurance coverage are provided to the Purchaser, the Company or AHI for matters that give rise to Losses resulting from a Product Liability Indemnification, AHI and the Purchaser shall use such proceeds as reimbursement for such Losses and Sellers shall not be liable for such Losses to the extent such Losses are recovered thereby and shall remain liable only for any policy deductibles and any Losses exceeding the amounts recovered.
(ix) Anything in this Agreement to the contrary notwithstanding, the liability of Xxxxx Xxxxxx for Losses under Section 5.3 shall be limited to 0.4 percent of the aggregate amount of such Losses, provided that he shall be solely liable for one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for Losses arising out of a breach of the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard Sections 3.2 or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date3.14(b), to the extent such exacerbation increases they arise out of or relate to the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsSecurities that were owned by him.
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to To the extent the Indemnitee gives notice of such claim Partnership Indemnified Parties are entitled to the Indemnifying Party in accordance with Section 9.3 prior indemnification for Losses pursuant to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable 9.3(a) (other than for indemnification pursuant Losses related to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i4.6), respectively, in an Anadarko shall not be liable for those Losses unless the aggregate amount in excess of Losses exceeds one hundred percent (1001%) of the Purchase Pricesum of (A) the Cash Consideration plus (B) the dollar value of the Unit Consideration on the Closing Date (the sum of (A) and (B) being the “Aggregate Consideration”) (the “Deductible”), and then only to the extent of any such excess and (ii) Section 9.3(a) for Losses related to a breach of the representations and warranties in Section 4.6, Anadarko shall not be liable for those Losses unless the aggregate amount of Losses exceeds $100,000 and then only to the extent of any such excess.
(b) In addition, to the extent the Partnership Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.3(a), Anadarko shall not be liable for such Losses that exceed, in the aggregate, twenty-five percent (25%) of the Aggregate Consideration less the Deductible.
(c) Notwithstanding anything contained in this Agreement clauses (a) and (b) above, to the contraryextent the Partnership Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.3(b), except 9.3(c), 9.3(d) or 9.3(e) or for claims arising from fraud, Anadarko shall be fully liable for such Losses without respect to the representations and warranties expressly contained Deductible in Article V Section 9.8(a) and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreementlimitations in Section 9.8(b), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In To the event that Buyer proceeds extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(a), the Partnership shall not be liable for those Losses unless the aggregate amount of Losses exceeds, in the aggregate, the Deductible, and then only to the Closing notwithstanding written notice from Seller prior extent of any such excess. In addition, to the Closing extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(a), the Partnership shall not be liable for such Losses that any breach by Seller of any representation or warranty in this Agreementexceed, individually or in the aggregate with any other breaches aggregate, ten percent (10%) of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwisethe Aggregate Consideration less the Deductible.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: Notwithstanding clause (id) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Dateabove, to the extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(b) or for claims arising from fraud, the Partnership shall be fully liable for such exacerbation increases Losses without respect to the cost of Deductible and the investigation or remediation of such contamination, Seller shall not be responsible for any such increase limitations in costsSection 9.8(d).
Appears in 1 contract
Limitations on Indemnification. 8.4.1 The Seller shall not have any Liability under Section 8.3.1(a):
(a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representationany individual claim involving Losses to any Buyer Indemnified Party of less than $100,000 (each a “De Minimis Claim”), warranty or covenant on which unless such individual claim is basedrelated to one or more other claims which, if anyin the aggregate together with such individual claim, set forth involve Losses in excess of $100,000, in which case Seller shall have liability for the full amount of such claims (subject to the other limitations contained in this Section 9.1.8.4) and such claims shall not be considered De Minimis Claims (it being understood and agreed that notwithstanding anything in the foregoing to the contrary, for purposes of this Section 8.4.1, all claims related to any fact or circumstance that causes any representation or warranty made in any particular Section of this Agreement to be inaccurate shall be deemed to be related to all other claims related to such fact or circumstance); and
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate amount of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or Indemnified Parties that are indemnifiable in accordance with Section 8.3.1(a) exceeds one percent (1.0%) of the Closing Purchase Price (the “Deductible”) and, in such event, the Seller Indemnitees, respectively, shall be required to pay only the amount of Losses exceeding such Deductible. Unit Purchase Agreement 64
8.4.2 The Buyer shall not have any Liability under Section 8.3.2(a):
(a) with respect to any De Minimis Claim; and
(b) unless and until the aggregate amount of Losses incurred by the Seller Indemnified Parties that are indemnifiable in accordance with Section 8.3.2(a) exceeds 2% of the Purchase PriceDeductible and, in which case such event, the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant pay only the amount of Losses exceeding such Deductible.
8.4.3 No Party shall be required to indemnify any Indemnified Party under Section 9.2(a)(i8.3.1(a) or Section 9.2(b)(i8.3.2(a), respectivelyas applicable, in for an aggregate amount in excess of twelve and one-half Losses exceeding an amount equal to twenty percent (12.520%) of the Closing Purchase PricePrice (the “Representations and Warranties Cap”) in connection with Losses related to the failure of such Party’s representations or warranties to be true and correct.
8.4.4 Notwithstanding anything in this Agreement to the contrary, (iiia) The the limitations specified on indemnification set forth in Section 9.4(b)(i) Sections 8.4.1, 8.4.2, and Section 9.4(b)(ii) 8.4.3 shall not apply to Indemnifiable Losses arising out related to the failure to be true and correct of any breach of the Fundamental Representations or the representations and warranties contained in Section 2.6 (Matters Related to the Assets), 2.7 (Easements), Section 2.12 (Participation Agreements), Section 2.13 (Taxes), Section 2.23 (Employment and Employee Benefit Plan Matters), Section 2.25 (Restrictions on Distributions) and Section 2.29 (Dedicated Acreage) and (b) the limitations on indemnification set forth in Sections 8.4.1(b) and 8.4.3 shall not apply to Losses related to the failure to be true and correct of any of the representations and warranties contained in Section 5.12.15 (Environmental).
8.4.5 Following the Closing, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required any rights to make payments for indemnification pursuant to Section 9.2(a)(i) 8.3 based on representations, warranties, covenants or Section 9.2(b)(i), respectivelyagreements in this Agreement, in an aggregate amount any Transaction Document or in excess any certificate delivered pursuant hereto or thereto shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of one hundred percent (100%being acquired) at any time, whether before, on or after the execution and delivery of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to or the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty Closing. The waiver of any kind or nature whatsoever (including with respect to Seller, condition based on the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller accuracy of any representation or warranty in this Agreementwarranty, individually or in the aggregate with performance of or compliance with, any such covenant or agreement, shall not affect the right to indemnification or any other breaches remedy based on such representations, warranties, covenants or agreements.
8.4.6 The amount of Seller’s representations any indemnifiable Loss under Sections 8.3.1, 8.3.3 or 8.3.4 shall be reduced by (a) the net amount (after payment of all related expenses) of any insurance proceeds (other than those from self-insurance) realized by, paid to and warranties actually recovered by any member of the Unit Purchase Agreement 65 Company Group or the Indemnified Party in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have respect of such Loss and (b) any claim or recourse against Seller or any net amounts (after payment of its Affiliates all related expenses) actually recovered from third parties with respect to such breachLoss, in each case of the foregoing clauses (a) and (b), after giving effect to any expenditures to obtain such payments and any applicable deductible or retention and resulting retrospective premium adjustment. In the event an Indemnified Party recovers under this Article IX insurance policies or otherwise.
(e) In addition from third parties pursuant to the other limitations set forth foregoing clauses (a) and (b), any portion of a Loss for which such Indemnified Party was previously indemnified hereunder, such Indemnified Party shall promptly pay over to the Indemnifying Party the net amount so recovered, but not in this Article IXexcess of any amount previously so paid to such Indemnified Party in respect of such Loss, and net of any amounts for which the Indemnified Party was not indemnified with respect to such Loss hereunder. Each Party shall use commercially reasonable efforts (i) to make applicable insurance claims, (ii) seek to recover available amounts described in the foregoing clauses (a) and (b) and (iii) keep the Indemnifying Party reasonably informed of the progress of any action taken in respect of the foregoing clauses (i) and (ii), in each case, with respect to any claim for which it is seeking indemnification regarding pursuant to this Section 8; provided, that (x) for the avoidance of doubt, such commercially reasonable efforts shall not include any breach obligation to take any action that, in the reasonable and good faith judgment of the Indemnified Party or its Affiliates, would reasonably be expected to jeopardize any material relationship with any counterparty of such Indemnified Party or its Affiliates, or any Affiliates of such counterparty or result in any material risk of Liability to, or the occurrence or worsening of any representation Proceeding involving, such Indemnified Party or its Affiliates and warranty (y) the costs and expenses incurred in connection with such commercially reasonable efforts shall be included in the calculation of indemnifiable Losses hereunder.
8.4.7 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER THE BUYER, THE SELLER NOR THEIR RESPECTIVE AFFILIATES SHALL BE LIABLE HEREUNDER TO ANY INDEMNIFIED PARTY FOR ANY (I) PUNITIVE OR EXEMPLARY DAMAGES OR (II) LOST PROFITS OR CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES EXCEPT, IN THE CASE OF THIS CLAUSE (II), TO THE EXTENT SUCH LOST PROFITS OR DAMAGES ARE (X) NOT BASED ON ANY SPECIAL CIRCUMSTANCES OF THE PARTY ENTITLED TO INDEMNIFICATION (IT BEING UNDERSTOOD AND AGREED THAT NOTHING RELATING TO THE NEW COMMERCIAL AGREEMENTS, INCLUDING THE ENTRY INTO SUCH AGREEMENTS BY THE PARTIES THERETO SHALL CONSTITUTE SPECIAL CIRCUMSTANCES HEREUNDER) AND (Y) THE NATURAL, PROBABLE AND REASONABLY FORESEEABLE RESULT OF THE EVENT THAT GAVE RISE THERETO OR THE Unit Purchase Agreement 66 MATTER FOR WHICH INDEMNIFICATION IS SOUGHT HEREUNDER, REGARDLESS OF THE FORM OF ACTION THROUGH WHICH SUCH DAMAGES ARE SOUGHT, EXCEPT IN EACH CASE OF THE FOREGOING CLAUSES (I) AND (II), TO THE EXTENT ANY SUCH LOST PROFITS OR DAMAGES ARE INCLUDED IN ANY ACTION BY A THIRD PARTY AGAINST SUCH INDEMNIFIED PARTY FOR WHICH IT IS ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT.
8.4.8 The Buyer shall not, and shall cause any of its Subsidiaries that is party to such New Commercial Agreement not to, (a) seek to recover under such New Commercial Agreement in accordance with the cost of service provisions set forth therein any Loss for which the Buyer Indemnified Parties have been indemnified by Seller in Section 5.12: full hereunder and (ib) seek indemnification hereunder for any Loss to the extent applicableany of its Subsidiaries has included such Loss as a cost of service under a New Commercial Agreement, Seller’s indemnification obligation without dispute or failure to pay in respect thereof by any producer thereunder. For the avoidance of doubt, and notwithstanding anything to the contrary hereunder or thereunder, nothing in this Agreement or any other Transaction Document shall be limited require a Buyer Indemnified Party to submit any Loss (whether or not indemnified hereunder) pursuant to the cost of the least restrictive standard service provisions under any New Commercial Agreement, or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if otherwise seek to recover any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due Loss pursuant to the negligencecost of service provisions under any New Commercial Agreement, gross negligence rather than this Agreement or willful misconduct this Agreement rather than pursuant to the cost of Buyer after the Closing Date, service provisions under any New Commercial Agreement.
8.4.9 In no event shall any Party or any Indemnified party be entitled to recover any Losses under one Section or provision of this Agreement to the extent (a) such exacerbation increases Person has already recovered the cost of the investigation or remediation full amount of such contamination, Seller shall not be responsible for any Losses pursuant to another Section or provision of this Agreement or (b) such increase Losses have otherwise previously been satisfied and discharged in costsfull by an Indemnifying Party pursuant to this Agreement.
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Limitations on Indemnification. 7.3.1 The provisions for indemnity under Section 7.1.1(a) or Section 7.1.2(a) shall be effective only (a) A Party may assert a for any individual claim for indemnification hereunder only to or series of related claims arising from the extent same facts and circumstances where the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
Loss exceeds $[*] and (b) Notwithstanding any other provision when the aggregate amount of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable all Losses for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) claims or Section 9.2(b)(i) hereof (A) for any item or items series of related claims arising out of from the same facts, events or facts and circumstances where the Indemnifiable Loss relating thereto in excess of $[*] for which indemnification is less than sought from any Indemnifying Party exceeds $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price[*], in which case the Buyer Indemnitees Indemnified Party shall be entitled to indemnification of the Indemnified Party’s Losses in excess thereof. In no event shall any Indemnifying Party have liability for indemnification under (i) (A) Section 7.1.1(a) or (B) Section 7.1.2(a), as applicable, or (ii) under (A) Section 7.1.1(b) or (B) Section 7.1.2(b), as applicable, in either case (clauses (ii)(A) and (ii)(B)), with respect to any failure to perform or any breach of any covenant, agreement or obligation contained in Article 4, for any amount exceeding, in the Seller Indemniteesaggregate, $29,500,000; provided, however, that the limitations on indemnification under this Section 7.3.1 shall not apply to breaches of any Fundamental Rep.
7.3.2 The Indemnified Party shall take all commercially reasonable steps to mitigate any Losses incurred by such Party upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any indemnification rights hereunder. The amount of Losses recovered by an Indemnified Party under Section 7.1.1 or Section 7.1.2, as applicable, shall be entitledreduced by (a) any amounts actually recovered by the Indemnified Party from a Third Party in connection with such claim and (b) the amount of any insurance proceeds paid to the Indemnified Party relating to such claim (net of the amount of any associated increase in insurance premiums), in each case ((a) and (b)), out of the Indemnified Party’s costs of recovery. Buyer shall use its commercially reasonable efforts to collect insurance proceeds for any Loss that is subject to indemnification by Seller under Section 9.4(b)(ii), to indemnification for 7.1.
1. If any amounts referenced in the preceding clauses (xa) 50% of all such Indemnifiable Losses up to 2% and (b) are received after payment by the Indemnifying Party of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed full amount otherwise required to be a single item for purposes of paid to an Indemnified Party pursuant to this Article 7, the foregoingIndemnified Party shall repay to the Indemnifying Party, promptly after such receipt, any amount that the Indemnifying Party would not have had to pay pursuant to this Article 7 had such amounts been received prior to such payment.
(ii) Except as provided 7.3.3 If the Indemnified Party receives any payment from an Indemnifying Party in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification respect of any Losses pursuant to Section 9.2(a)(i) 7.1.1 or Section 9.2(b)(i)7.1.2 and the Indemnified Party could have recovered all or a part of such Losses from a Third Party based on the underlying claim asserted against the Indemnifying Party, respectively, the Indemnified Party shall assign such of its rights to proceed against such Third Party as are necessary to permit the Indemnifying Party to recover from the Third Party the amount of such payment.
7.3.4 The representations and warranties of Seller and Buyer contained in an aggregate amount this Agreement shall survive the Closing and continue in excess of twelve full force and one-half percent (12.5%) effect thereafter through and including the first anniversary of the Purchase Price.
Closing Date (iii) The limitations specified such date, the “Survival Date”); provided, that the Fundamental Reps shall remain in Section 9.4(b)(i) full force and Section 9.4(b)(ii) effect and shall not apply survive indefinitely or, if applicable, until 60 days following the expiration of the applicable statute of limitations. Any obligation of a Party to Indemnifiable Losses arising out indemnify the other Party in respect of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, covenant or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations agreement set forth in this Article IX, with 4 shall survive the Closing through and including the Survival Date. Any obligation of a Party to indemnify the other Party in respect to any claim for indemnification regarding of any breach of any representation and warranty set forth in Section 5.12: (i) covenant or agreement which is to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after performed following the Closing Date, to shall survive until the extent such exacerbation increases the cost applicable statute of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costslimitations except as otherwise specified herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aegerion Pharmaceuticals, Inc.)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, but subject to this Section 8.3, in no event shall the cumulative indemnification obligations of the (i) Seller under Section 8.2(a)(i) (except for Fundamental Representations and the representations and warranties expressly contained set forth in Article V Section 4.17 (No Channel Stuffing) (the “Channel Stuffing Representation”) and Section 4.6(c) (Intellectual Property) (the “IP Infringement Representation”)) and Section 8.2(a)(iii) or (ii) Buyer under Section 8.2(b)(i), each in the aggregate exceed an amount equal to [****] dollars ($[****]) (the “Cap Amount”); provided, that, notwithstanding anything to the contrary, the Cap Amount shall not, nor shall any other limitation set forth in this Section 8.3, apply to any indemnification obligations arising under Sections 8.2(a)(i), 8.2(a)(iii) or 8.2(b)(i) in the event of actual fraud or under Sections 8.2(a)(ii) or 8.2(a)(v) or Sections 8.2(b)(iii) through 8.2(b)(vii) (as applicable). [****]
(b) In no event shall the cumulative indemnification obligations of the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Sellerany breach of the IP Infringement Representation exceed the sum of [****] dollars ($[****]) and the Cap Amount. In the event that any Buyer Indemnitee is entitled to indemnification pursuant to this ARTICLE 8 for breach of the IP Infringement Representation, such Buyer Indemnitee shall be entitled to recover directly from the BusinessSeller up to [****] dollars ($[****]) in respect of such claims before seeking any disbursement from the Escrow Account pursuant to Section 8.8.
(c) In no event shall the cumulative indemnification obligations of the Seller with respect to any breach of the Channel Stuffing Representation or Section 6.9 asserted prior to the first anniversary of the Closing Date exceed the sum of [****] dollars ($[****]) and the Cap Amount; provided however, that commencing as of the Purchased Assetsfirst anniversary of the Closing Date, any Losses incurred by any Buyer Indemnitee arising from a breach of the Assumed Obligations Channel Stuffing Representation or Section 6.9 shall be subject to the transactions contemplated by Cap Amount. In the event that any Buyer Indemnitee is entitled to indemnification pursuant to this Agreement)ARTICLE 8 prior to the first anniversary of the Closing Date for breach of the Channel Stuffing Representation or Section 6.9, and such Buyer Indemnitee shall be entitled to recover directly from the Seller hereby disclaims up to [****] dollars ($[****]) in respect of such claims before seeking any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including disbursement from the implied warranty of merchantability and any implied warranty of fitness for a particular purposeEscrow Account pursuant to Section 8.8.
(d) In no event shall the event that Buyer proceeds to cumulative indemnification obligations of the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX any Losses incurred by any Buyer Indemnitee arising from a breach of the Fundamental Representations or otherwiseSection 8.2(a)(iv) (except for a breach of Section 6.9) and of the Buyer with respect to Section 8.2(b)(ii) exceed the Purchase Price. The parties acknowledge and agree that claims by [****] shall be covered by Sections 4.20(a) (Regulatory Compliance) and 4.21(a) (Administrative/Enforcement Action) hereof.
(e) In addition Notwithstanding anything in this Agreement to the other contrary, the Seller shall not have any obligation to indemnify any Buyer Indemnitee under Sections 8.2(a)(i) or 8.2(a)(iii) until the aggregate amount of Losses that would otherwise be subject to indemnification pursuant to Sections 8.2(a)(i) or 8.2(a)(iii) exceeds an amount equal to [****] dollars ($[****]) (the “Basket Amount”), whereupon the Buyer Indemnitee shall be entitled to receive only amounts for Losses in excess of the Basket Amount; provided, however, that the limitations set forth in this Article IXSection 8.3(e) shall not apply to breaches of the Fundamental Representations, with respect to any claim the Channel Stuffing Representation for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) claims asserted prior to the extent applicable, Seller’s indemnification obligation shall be limited to the cost first anniversary of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, the IP Infringement Representation or any indemnification obligations arising under Sections 8.2(a)(i) or 8.2(a)(iii) in the event of actual fraud or under Sections 8.2(a)(ii), 8.2(a)(iv) or 8.2(a)(v), or Sections 8.2(b)(ii) through 8.2(b)(vii).
(f) Notwithstanding anything contained herein to the contrary, under no circumstances shall any Indemnitee be entitled to be indemnified for special, consequential, indirect, punitive, exemplary or other similar damages, or damages based upon lost profits, lost revenues, diminution in value, business interruptions, multiples of earnings, multiples of cash flows, or loss of business opportunity or reputation, except to the extent such exacerbation increases Losses are paid by an Indemnitee in connection with a Third Party Claim. The Indemnitee shall use its commercially reasonable efforts to mitigate any Losses which form the cost basis of an indemnification claim hereunder.
(g) No party hereto shall be obligated to indemnify any other Person with respect to (i) any representation, warranty, covenant or condition specifically waived in writing by the investigation other party on or remediation of such contaminationprior to the Closing, Seller or (ii) any Losses for which a Claims Notice was not duly delivered prior to the applicable Cut-Off Date.
(h) The Buyer Indemnitees shall not be responsible for entitled to recover any Losses relating to any matter arising under one provision of this Agreement to the extent that the Buyer Indemnitees have already recovered Losses with respect to such increase matter pursuant to other provisions of this Agreement; provided that the parties acknowledge and agree that if any claim may be asserted either as a breach of a Fundamental Representation or a breach of a non-Fundamental Representation, it is in coststhe Buyer Indemnitees’ discretion as to how such claim is asserted.
Appears in 1 contract
Limitations on Indemnification. The indemnification provided for in Sections 8.1 and 8.2 above is subject to the following limitations:
(a) A Party may assert No Person will be liable hereunder with respect to claims referred to in Section 8.1 or Section 8.2 above unless the other party gives written notice thereof (together with a reasonably detailed description of the claim for indemnification hereunder only to and the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 basis thereof) prior to the expiration 12 month anniversary of the applicable survival period with respect Closing Date. Notwithstanding any implication to the representationcontrary contained in this Agreement, warranty or covenant on so long as a party delivers written notice of a claim no later than the 12 month anniversary of the Closing Date, the other party shall be required to indemnify hereunder for all Damages which such claim is based, if any, parties may incur (subject to any limitations set forth herein) in Section 9.1respect of the matters which are the subject of such claim, regardless of when incurred.
(b) Notwithstanding The holders of the Notes shall not be liable to the iPayment Indemnitees for any other provision Damages arising under Section 8.1 above (1) unless (A) the aggregate amount of this Article IX:
any Damages as a result of, in connection with, relating or incidental to or by virtue of any particular breach or series of related breaches exceeds $10,000 (i) Except as provided in Section 9.4(b)(iiithe "ECX Threshold"), in no event which case all such Damages, including the initial $10,000, shall either Party be liable for indemnification included in the calculation of Damages under, and indemnifiable pursuant to Section 9.2(a)(ito, clause (B), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% amount of all such Indemnifiable Damages exceeds (but only to the extent such Losses up exceed) $100,000 in the aggregate (the "ECX Basket"), or (2) to 2% the extent the aggregate amount of all such Damages indemnified by the holders of the Purchase Price Notes exceeds $3,000,000 (the "ECX Cap"); provided that the foregoing limitations (i.e., the ECX Threshold, the ECX Basket and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(iiECX Cap) shall not apply with respect to Indemnifiable Losses any Damages arising out of any from or related to a breach of any of the representations and or warranties of ECX set forth in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i4.5(e) or Section 9.2(b)(i8.1(b), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement iPayment shall not be liable to the contrary, except ECX Indemnitees for any Damages arising under Section 8.2 above (1) unless (A) the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty aggregate amount of any kind Damages as a result of, in connection with, relating or nature whatsoever incidental to or by virtue of any particular breach or series of related breaches exceeds $10,000 (the "iPayment Threshold"), in which case all such Damages, including with respect to Sellerthe initial $10,000, shall be included in the Businesscalculation of Damages under, the Purchased Assetsand indemnifiable pursuant to, the Assumed Obligations or the transactions contemplated by this Agreementclause (B), and Seller hereby disclaims any other representations or warranties, whether made by (B) the aggregate amount of all such Party or its Affiliates, officers, directors, employees, agentsDamages exceeds (but only to the extent such Losses exceed) $100,000 in the aggregate (the "iPayment Basket"), or representatives, including (2) to the implied warranty extent the aggregate amount of merchantability and any implied warranty all such Damages indemnified by the holders of fitness for a particular purposethe Notes exceeds $3,000,000 (the "iPayment Cap").
(d) In the event The amounts for which an indemnifying party shall be liable under Sections 8.1 and 8.2 of this Agreement shall be net of any Tax benefits and insurance proceeds that Buyer proceeds may be available to the Closing notwithstanding written notice from Seller prior indemnified party in connection with the facts giving rise to the Closing that any breach by Seller right of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwiseindemnification.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Merger Agreement (Ipayment Inc)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder under Section 10.1(a) or Section 10.1(b)(i), as the case may be, only to the extent the Indemnitee Indemnified Party gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival time period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.110.4. Any claim for indemnification not made in accordance with Section 10.2 by a Party on or prior to the applicable date set forth in Section 10.4 or this Section 10.3(a) (and the other Party’s indemnification obligations with respect thereto) will be irrevocably and unconditionally released and waived.
(b) Notwithstanding any other provision of this Article IX:
X: (i) Except as provided in PNG will not have any indemnification obligations under clauses (i) and (iii) of Section 9.4(b)(iii10.1(a), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any individual item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss dollar amount of Adverse Consequences relating thereto is less than Fifty Thousand Dollars ($100,000 50,000) and (B) in respect of each individual item where the Indemnifiable Loss dollar amount of Adverse Consequences relating thereto is equal to or greater than Fifty Thousand Dollars ($100,00050,000), unless and until the aggregate dollar amount of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, such Adverse Consequences exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(iiOne Million and Five Hundred Thousand Dollars ($1,500,000), and then only to the extent of such excess; and (ii) in no event will the aggregate indemnification for to be paid by PNG under clauses (i) and (iii) of Section 10.1(a) exceed Twelve Million and Five Hundred Thousand Dollars ($12,500,000). Notwithstanding the foregoing, (x) 50% the limitations set forth in Section 10.3(b)(i) and Section 10.3(b)(ii) will not apply to claims asserted by EQT for breaches of all such Indemnifiable Losses up to 2% Section 3.1, Section 3.2, Section 3.3(a), Section 3.5, Section 3.8, Section 3.19 or Section 3.23 of the Purchase Price this Agreement and (y) all such Indemnifiable Losses the limitations set forth in excess Section 10.3(b)(i) and 10.3(b)(ii) will not apply to claims arising from any Retained Obligations or from the intentional fraud and willful misconduct of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingPNG.
(c) Notwithstanding any other provision of this Article X: (i) EQT will not have any indemnification obligations under Sections 10.1(b)(i) , (A) for any individual item where the dollar amount of Adverse Consequences relating thereto is less than Fifty Thousand Dollars ($50,000) and (B) in respect of each individual item where the dollar amount of Adverse Consequences relating thereto is equal to or greater than Fifty Thousand Dollars ($50,000), unless the aggregate dollar amount of all such Adverse Consequences exceeds One Million and Five Hundred Thousand Dollars ($1,500,000), and then only to the extent of such excess and (ii) Except as provided in no event will the aggregate indemnification to be paid by EQT under Section 10.1(b)(i) exceed Twelve Million and Five Hundred Thousand Dollars ($12,500,000). Notwithstanding the foregoing, (x) the limitations set forth in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i10.3(c)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall will not apply to Indemnifiable Losses arising out of any claim for indemnification with respect to any breach or violation of any of the representations and warranties contained in Section 5.14.1 (Formation and Corporate Power), 5.2Section 4.2 (Authorizations; Validity), 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i4.3(a) (No Conflicts) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent 4.6 (100%Brokers) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to and (y) the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect Sections 10.3(c)(i) and 10.3(c)(ii) will not apply to claims arising from any claim for indemnification regarding any breach of any representation Assumed Liabilities or the intentional fraud and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsEQT.
Appears in 1 contract
Samples: Asset Exchange Agreement (EQT Corp)
Limitations on Indemnification. (a) A Sellers shall not be required to indemnify any Purchaser Indemnified Party may assert a claim for indemnification hereunder only under Section 10.2(a)(i), Section 10.2(a)(ii) and/or Section 10.2(b)(i) unless and until the aggregate amount of Losses that the Purchaser Indemnified Parties are entitled to recover under this Article X exceeds One Million Eight Hundred Twenty-Two Thousand Five Hundred Dollars ($1,822,500) (the “Deductible”) and then Sellers shall be required to indemnify the applicable Purchaser Indemnified Parties, subject to the extent other limitations contained herein, solely for the Indemnitee gives notice amount of such claim to the Indemnifying Party Losses in accordance with Section 9.3 prior to the expiration excess of the applicable survival period with respect Deductible; provided, that, the Deductible shall not apply to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1Losses arising from Fraud.
(b) Notwithstanding The maximum amount of Losses on a collective basis that may be recovered or asserted in any claim(s) by the Purchaser Indemnified Parties under Section 10.2(a)(i), Section 10.2(a)(ii), and/or Section 10.2(b)(i) (other provision than with respect to Fraud) shall be limited to and shall in no event exceed the Indemnification Escrow Amount, which together with the RWI Policy (subject to Section 10.4), shall be the sole and exclusive source of recovery for such Losses. Sellers shall have no obligation to directly satisfy any claim by a Purchaser Indemnified Party for indemnification under Section 10.2(a)(i), Section 10.2(a)(ii), or Section 10.2(b)(i) (other than with respect to Fraud, subject to Section 10.4). The maximum amount of Losses on a collective basis that may be recovered or asserted in any claim(s) by the Purchaser Indemnified Parties under Section 10.2(a)(v) shall be limited to and shall in no event exceed the Specified Taxes Cap (as defined in Schedule 10.2(a)(v)). With respect to claims for indemnification under Sections 10.2(a)(iii)-(v), subject to the preceding sentence, the maximum liability of any Seller to the Purchaser Indemnified Parties shall be such Seller’s Pro Rata Percentage of such Losses. The maximum liability of any Seller to the Purchaser Indemnified Parties shall not in the aggregate exceed the proceeds actually received by such Seller.
(c) The amount of any Losses for which indemnification is provided for under this Article IX:
X (iwithout giving effect to limitations) Except as provided shall be calculated net of any insurance proceeds or other amounts actually received by the Indemnitee from third parties with respect to such Losses, in Section 9.4(b)(iii)each case, net of the present value of any increases in premiums, any costs of collection or deductibles resulting therewith; provided, that, in no event shall either Purchaser or any other Purchaser Indemnified Party be liable for indemnification pursuant required to Section 9.2(a)(iinitiate litigation to recover any such amounts. If an Indemnitee collects an amount in discharge of a claim of a Loss reimbursed by an Indemnitor, and such Indemnitee subsequently recovers from a third party (including under the RWI Policy) (such excess recovery, the “Excess Recovery”), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of such Indemnitee shall repay to the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is Indemnitor an amount equal to the Excess Recovery less any costs or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are expenses incurred or suffered by the Buyer Indemnitees Indemnitee in procuring the Excess Recovery including the present value of any increases in premiums and any costs of collection or the Seller Indemnitees, respectively, exceeds 2% deductibles resulting therewith. Any Losses for which any Indemnitee is entitled to indemnification under this Article X shall be determined without duplication of recovery by reason of the Purchase Pricestate of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant, or agreement. No Party will be entitled to be indemnified for an amount pertaining to any Loss to the extent that such amount pertaining to such Loss was included or taken into account in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% calculation of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification finally adjudicated pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose1.4.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from No Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim right of contribution, subrogation, or other recourse against Seller the Company or any of its Affiliates with directors, managers, officers, employees, Affiliates, agents, attorneys, stockholders, members, representatives, assigns, or successors in respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation claims asserted by any Purchaser Indemnified Parties, it being acknowledged and warranty set forth in Section 5.12: (i) agreed that the covenants, agreements, and obligations of the Company are solely for the benefit of the Purchaser Indemnified Parties. Except to the extent applicableprohibited by Law, Seller’s indemnification obligation upon and after becoming aware of any event which could reasonably be expected to give rise to any indemnifiable Losses hereunder, the Indemnitee shall be limited take and cause its Affiliates to take, or cooperate with the cost Indemnitor if so requested by the Indemnitor in order to take, all commercially reasonable measures to mitigate the indemnifiable Losses based upon, arising out of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use incurred as a result of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factorssuch event; provided, that in no event shall the use Indemnitee be required to initiate litigation in respect of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsefforts.
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder under Section 10.1(a)(i) or Section 10.1(b)(i), as the case may be, only to the extent the Indemnitee Indemnified Party gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival time period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.110.4. Any claim for indemnification not made in accordance with Section 10.2 by a Party on or prior to the applicable date set forth in Section 10.4 or this Section 10.3(a) (and the other Party’s indemnification obligations with respect thereto) will be irrevocably and unconditionally released and waived.
(b) Notwithstanding any other provision of this Article IX:
X: (i) Except as provided in Sellers will not have any indemnification obligations under Section 9.4(b)(iii10.1(a)(i), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any individual item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss dollar amount of Adverse Consequences relating thereto is less than Three Hundred Fifty Thousand Dollars ($100,000 350,000) and (B) in respect of each individual item where the Indemnifiable Loss dollar amount of Adverse Consequences relating thereto is equal to or greater than Three Hundred Fifty Thousand Dollars ($100,000350,000), unless and until the aggregate dollar amount of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, such Adverse Consequences exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(iiTwelve Million Dollars ($12,000,000), and then only to the extent of such excess; and (ii) in no event will the aggregate indemnification for to be paid by Sellers under Section 10.1(a)(i) exceed One Hundred Million Dollars ($100,000,000). Notwithstanding the foregoing, (x) 50% the limitations set forth in Section 10.3(b)(i) and Section 10.3(b)(ii) will not apply to claims asserted by Buyer for breaches of all such Indemnifiable Losses up to 2% Sections 3.1, 3.2, 3.3(a), 3.4, 3.7 or 3.10 of the Purchase Price this Agreement, and (y) all such Indemnifiable Losses the limitations set forth in excess Section 10.3(b)(i) and 10.3(b)(ii) will not apply to claims arising from the BS Line Item or the intentional fraud and willful misconduct of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingSellers.
(c) Notwithstanding any other provision of this Article X: (i) Buyer will not have any indemnification obligations under Section 10.1(b)(i), (A) for any individual item where the dollar amount of Adverse Consequences relating thereto is less than Three Hundred Fifty Thousand Dollars ($350,000) and (B) in respect of each individual item where the dollar amount of Adverse Consequences relating thereto is equal to or greater than Three Hundred Fifty Thousand Dollars ($350,000), unless the aggregate dollar amount of all such Adverse Consequences exceeds Twelve Million Dollars ($12,000,000), and then only to the extent of such excess and (ii) Except as provided in no event will the aggregate indemnification to be paid by Buyer under Section 10.1(b)(i) exceed One Hundred Million Dollars ($100,000,000). Notwithstanding the foregoing, (x) the limitations set forth in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i10.3(c)(i) and Section 9.4(b)(ii10.3(c)(ii) shall will not apply to Indemnifiable Losses arising out of any claim for indemnification with respect to any breach or violation of any of the representations and warranties contained in Section 5.14.1 (Formation and Power of Buyer), 5.2Section 4.2 (Authorization; Validity), 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i4.3 (No Conflict) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent 4.6 (100%Brokers) of and (y) the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect Section 10.3(c)(i) and 10.3(c)(ii) will not apply to any claim for indemnification regarding any breach of any representation claims arising from the intentional fraud and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsBuyer.
Appears in 1 contract
Samples: Master Purchase Agreement (EQT Corp)
Limitations on Indemnification. (a) A Party may No party shall be entitled to assert a any claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Sections 6.2(b) (other than with respect to a breach of Section 9.2(a)(i3.4 and Section 4.18), Section 9.2(a)(ivor 6.3(b) or Section 9.2(b)(i) hereof (A) for any item or items arising out unless and until the amount of the same factsLosses sustained by such party with respect to any individual matter exceeds $20,000. In addition, events no party shall be obligated to indemnify another party with respect to any Losses pursuant to Sections 6.2(b) (other than with respect to a breach of Section 3.4 and Section 4.18), or circumstances where the Indemnifiable Loss relating thereto 6.3(b) as to which a party is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal otherwise entitled to or greater than $100,000, assert any claim for indemnification unless and until the aggregate amount of all Indemnifiable the Losses which are incurred or suffered by attributable to the Buyer Purchaser Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Sellers Indemnitees, as applicablethe case may be, exceeds $1,800,000 (the “Basket Amount”); provided, however, that thereafter the Indemnifying Party (as defined below) shall be entitled, subject to Section 9.4(b)(ii), to indemnification indemnify the other for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses any amounts in excess of 2% of of, and not including, the Purchase PriceBasket Amount. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except (i) the maximum aggregate obligation of the Purchaser pursuant to Section 6.3(b) shall not exceed $18,000,000, exclusive of any amounts due under Section 1.5, and (ii) the maximum aggregate obligation of the Sellers pursuant to Section 6.2(b)) shall not exceed $18,000,000, exclusive of any amounts due under Section 1.5; provided that, with respect to any breach of Section 3.3 (Capital Stock) the maximum aggregate obligation of the Sellers (including all other indemnification obligations of the Sellers pursuant to Section 6.2(b) shall not exceed $180,000,000 exclusive of any amounts due under Section 1.5. For the avoidance of doubt, no Party shall be entitled to recover for any Losses to the extent such Party recovered such Losses pursuant to Section 1.5.
(b) In calculating the amount of Losses suffered or incurred by a party for which indemnification is sought hereunder there shall be deducted the amount of (i) any insurance paid to such party or otherwise inuring to the benefit of such party as a result of any such Loss, and (ii) any reduction in Taxes attributable to such Losses which directly inures to the permanent benefit of that party for any current tax year as a result of any such Loss.
(c) No Purchaser Indemnitee shall be entitled to any indemnification hereunder for any breach of representations and warranties expressly contained in Article V if the Sellers can establish that on or prior to the Closing Date (x) the Company had no Knowledge of the breach and (y) the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty Purchaser had Knowledge of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposebreach.
(d) In The foregoing indemnification provisions shall be the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any sole and exclusive remedy and procedure for all claims for breach by Seller of any representation or warranty in this Agreementwarranty, individually or agreement contained herein or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX the Schedules or otherwiseExhibits attached hereto other than a suit for specific performance.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Limitations on Indemnification. 8.4.1 The Seller shall not have any Liability under Section 8.3.1(a):
(a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representationany individual claim involving Losses to any Buyer Indemnified Party of less than $100,000 (each a “De Minimis Claim”), warranty or covenant on which unless such individual claim is basedrelated to one or more other claims which, if anyin the aggregate together with such individual claim, set forth involve Losses in excess of $100,000, in which case Seller shall have liability for the full amount of such claims (subject to the other limitations contained in this Section 9.1.8.4) and such claims shall not be considered De Minimis Claims (it being understood and agreed that notwithstanding anything in the foregoing to the contrary, for purposes of this Section 8.4.1, all claims related to any fact or circumstance that causes any representation or warranty made in any particular Section of this Agreement to be inaccurate shall be deemed to be related to all other claims related to such fact or circumstance); and
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate amount of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or Indemnified Parties that are indemnifiable in accordance with Section 8.3.1(a) exceeds one percent (1.0%) of the Closing Purchase Price (the “Deductible”) and, in such event, the Seller Indemnitees, respectively, shall be required to pay only the amount of Losses exceeding such Deductible.
8.4.2 The Buyer shall not have any Liability under Section 8.3.2(a):
(a) with respect to any De Minimis Claim; and
(b) unless and until the aggregate amount of Losses incurred by the Seller Indemnified Parties that are indemnifiable in accordance UNIT PURCHASE AGREEMENT 65 with Section 8.3.2(a) exceeds 2% of the Purchase PriceDeductible and, in which case such event, the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant pay only the amount of Losses exceeding such Deductible.
8.4.3 No Party shall be required to indemnify any Indemnified Party under Section 9.2(a)(i8.3.1(a) or Section 9.2(b)(i8.3.2(a), respectivelyas applicable, in for an aggregate amount in excess of twelve and one-half Losses exceeding an amount equal to twenty percent (12.520%) of the Closing Purchase Price.
Price (iiithe “Representations and Warranties Cap”) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable connection with Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement related to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty failure of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other such Party’s representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability warranties to be true and any implied warranty of fitness for a particular purposecorrect.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Unit Purchase Agreement
Limitations on Indemnification. (a) A The Seller Parties shall not have any Liability under Section 8.3(a)(i):
(i) with respect to any individual claim involving Losses to any Buyer Indemnified Party may assert of less than $100,000 (each a “De Minimus Claim”), unless such individual claim is related to one or more other claims which, in the aggregate together with such individual claim, involve Losses in excess of $100,000, in which case Seller shall have Liability for indemnification hereunder only the full amount of such claims (subject to the extent other limitations contained in this Section 8.4) and such claims shall not be considered De Minimus Claims; and
(ii) unless and until the Indemnitee gives notice aggregate amount of such claim to Losses incurred by the Indemnifying Party Buyer Indemnified Parties that are indemnifiable in accordance with Section 9.3 prior 8.3(a)(i) exceeds $8,650,000 (the “Deductible”) and, in such event, Seller Parties shall be required to pay only the expiration amount of the applicable survival period with respect to the representation, warranty or covenant on which Losses exceeding such claim is based, if any, set forth in Section 9.1Deductible.
(b) Notwithstanding Buyer shall not have any other provision of this Article IX:Liability under Section 8.3(b)(i)
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant with respect to Section 9.2(a)(i), Section 9.2(a)(ivany De Minimus Claim; and
(ii) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate amount of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or Seller Indemnified Parties that are indemnifiable in accordance with Section 8.3(b)(i) exceeds the Seller Indemnitees, respectively, exceeds 2% of the Purchase PriceDeductible and, in which case the Buyer Indemnitees or the Seller Indemniteessuch event, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant pay only the amount of Losses exceeding such Deductible.
(c) No Party shall be required to indemnify any Indemnified Party under Section 9.2(a)(i) 8.3(a)(i), Section 8.3(a)(ii), or Section 9.2(b)(i)8.3(b) as applicable, respectively, in for an aggregate amount of Losses exceeding an amount equal to $173,000,000 (the “Representations and Warranties Cap”) in excess connection with Losses related to the failure of twelve such Party’s representations or warranties to be true and one-half percent (12.5%) of the Purchase Pricecorrect.
(iiid) The Notwithstanding anything in this Agreement to the contrary, (i) the limitations specified on indemnification set forth in Section 9.4(b)(i) Sections 8.4(a), 8.4(b), and Section 9.4(b)(ii8.4(c) shall not apply to Indemnifiable Losses arising out related to the failure to be true and correct of any breach of the Fundamental Representations or the representations and warranties contained in Section 2.13 (Taxes) or Section 2.16 (Environmental) and (ii) the limitations on indemnification set forth in Sections 8.4(a)(ii) and 8.4(c) shall not apply to Losses related to the failure to be true and correct of any of the representations and warranties contained in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required 2.6(b) (Title to make payments for indemnification pursuant to Section 9.2(a)(iReal Property) or Section 9.2(b)(i2.7(a) (Rights-of-Way), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition For purposes of (i) determining the failure of any representations or warranties (other than in Section 2.10(a)) to be true and correct, (ii) the breach of any covenants or agreements, and (iii) calculating Losses hereunder, any materiality qualifiers in the representations, warranties, covenants, and agreements shall be disregarded.
(f) Following the Closing, the right to indemnification pursuant to this Article 8 based on representations, warranties, covenants, and agreements in this Agreement shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing, with respect to the accuracy or inaccuracy of, or compliance with, any such representation, warranty, covenant, or agreement. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with, any such covenant or agreements, shall not affect the right to indemnification or any other limitations set forth remedy based on such representations, warranties, covenants, and agreements.
(g) The amount of any Loss under Section 8.3 shall be reduced by (i) the amount of any insurance proceeds (other than those from self insurance) realized by and paid to the Indemnified Party (or the Company for the benefit of the Indemnified Party) in this Article IXrespect of such Loss and (ii) any amounts actually recovered from third parties (or which are recoverable over time) with respect to such Loss, after giving effect to any expenditures to obtain such payments and any applicable deductible or retention and resulting retrospective premium adjustment. Each Party shall use commercially reasonable efforts to make applicable insurance claims with respect to any claim for which it is seeking indemnification regarding any breach of any representation and warranty set forth in Section 5.12: pursuant to this Article 8.
(h) EACH OF BUYER AND THE SELLER PARTIES WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION OR ARBITRATION ANY “SPECIAL DAMAGES,” AS DEFINED BELOW AND ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION, IN EACH CASE IT BEING THE EXPRESS INTENT, UNDERSTANDING, AND AGREEMENT OF THE PARTIES THAT SUCH WAIVERS ARE TO BE GIVEN THE FULLEST EFFECT, NOTWITHSTANDING THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY PARTY. AS USED IN THIS SECTION, “SPECIAL DAMAGES” MEANS ALL SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (REGARDLESS OF HOW NAMED), BUT DOES NOT INCLUDE (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and ANY PAYMENTS OR FUNDS WHICH ANY PARTY HERETO HAS EXPRESSLY PROMISED TO PAY OR DELIVER TO ANY OTHER PARTY HERETO (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligenceANY CLAIMS OF ANY PERSON FOR WHICH ONE PARTY HAS AGREED TO INDEMNIFY THE OTHER PARTY UNDER THIS AGREEMENT, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller (iii) DAMAGES TO AN UNAFFILIATED THIRD PARTY IN CONNECTION WITH A THIRD PARTY CLAIM OR (iv) DAMAGES THAT ARE INCLUDED IN ANY ORDER FROM A GOVERNMENTAL BODY.
(i) The Indemnified Party shall not be responsible for any such increase entitled to recover from an Indemnifying Party under this Agreement more than once in costsrespect of the same damage suffered.
Appears in 1 contract
Samples: Unit Purchase Agreement (Chesapeake Midstream Partners Lp)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to Notwithstanding the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision provisions of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i)neither the Seller Parties, Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of on the same factsone hand, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by nor the Buyer Indemnitees or Parties, on the Seller Indemniteesother hand, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification indemnify the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectivelyas the case may be, in an until the aggregate of all Losses related thereto (other than Losses arising out of breaches of the Fundamental Representations or arising out of any fraud or intentional misrepresentation of any Seller Party or Buyer) suffered by the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds Forty-Four Thousand and No/100 Dollars ($44,000.00) (the “Deductible”), after which, the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, shall be entitled to indemnification only for the amount of such Losses in excess of twelve the Deductible, but subject to Section 9.3(b).
(b) Notwithstanding the other provisions of this Article IX (but except as otherwise provided in Section 9.11), (i) the Seller Parties shall not be required to make indemnification payments (A) pursuant to Section 9.2(a)(i) (other than in respect of any Fundamental Representation or arising out of any fraud or intentional misrepresentation of any Seller Party) in excess of Eight Hundred Eighty Thousand and one-half percent No/100 Dollars (12.5%$880,000.00) (the “Special Cap”) or (B) pursuant to Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or otherwise under this Agreement, in the aggregate, in excess of the Purchase Price; and (ii) the Buyer Parties shall not be required to make indemnification payments (A) pursuant to Section 9.2(b)(i) (other than in respect of any Fundamental Representation or arising out of any fraud or intentional misrepresentation of Buyer) in excess of the Special Cap or (B) pursuant to Section 9.2(b)(i), Section 9.2(b)(ii), Section 9.2(b)(iii) or otherwise under this Agreement, in the aggregate, in excess of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii9.5(f) and Section 9.5(g), in no event shall either Party be liable for the Selling Parties indemnification pursuant obligations to the Buyer Indemnified Parties under Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, 9.1 will not commence unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees Indemnified Party as a result thereof equals or exceeds in the Seller Indemnitees, respectively, exceeds 2% of aggregate $31,040.00.00 (the Purchase Price, in “Basket Amount”) at which case time the Selling Parties shall be obligated to indemnify the Buyer Indemnitees or Indemnified Parties for all Losses incurred by all the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% Buyer Indemnified Parties from the first dollar of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingLosses.
(iib) Except as provided in Section 9.4(b)(iii9.5(f) and Section 9.5(g), neither the Buyer’s indemnification obligations to the Seller nor Indemnified Parties under Section 9.2 will not commence unless and until the Losses incurred by the Seller Indemnified Parties as a result thereof equals or exceeds in the aggregate the Basket Amount, at which time the Buyer shall be required obligated to make payments indemnify the Seller Indemnified Parties for indemnification all Losses incurred by all Seller Indemnified Parties from the first dollar of such Losses.
(c) Except as provided in Section 9.5(d), Section 9.5(f) and Section 9.5(g), the aggregate amount of Losses for which any of the Selling Parties shall be liable for breaches of representations and warranties pursuant to Section 9.2(a)(i9.1(a) or Section 9.2(b)(ishall not exceed $4,574,700.00 (the “General Cap Amount”), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iiid) The limitations specified Except as provided in Section 9.4(b)(i9.5(f) and Section 9.4(b)(ii9.5(g), the aggregate amount of Losses for which any of the Selling Parties shall be liable for breaches of Fundamental Representations, Special Representations and pursuant to any clause of Section 9.1 other than Section 9.1(a) shall not exceed $12,707,500.00 (the “Special Cap Amount”).
(e) Except as provided in Section 9.5(f) and Section 9.5(g), the aggregate amount of Losses for which the Buyer shall be liable pursuant to Section 9.2 shall not exceed an amount equal to the General Cap Amount.
(f) Notwithstanding anything to the contrary contained herein, Section 9.5(a), Section 9.5(b), Section 9.5(c), Section 9.5(d) and Section 9.5(e) shall not apply to Indemnifiable Losses in connection with, incident to, resulting from or arising out of, directly or indirectly, Taxes, any intentional misrepresentation, fraud or criminal activity and such Losses shall not be subject to the Basket Amount and shall not be counted for purposes of any breach of any of determining whether the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, General Cap Amount or 6.5, but in no case shall either Seller Special Cap Amount has been met or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Priceexceeded.
(cg) Notwithstanding anything contained in this Agreement to the contrarycontrary contained herein, except for the representations Section 9.5(a) shall not apply to Losses in connection with, incident to, resulting from or arising out of, directly or indirectly, Floorplan Loan Liabilities, Compliance Liabilities, Employee Liabilities and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller Losses shall not be responsible for any such increase in costssubject to the Basket Amount.
Appears in 1 contract
Samples: Asset Purchase Agreement (KAR Auction Services, Inc.)
Limitations on Indemnification. 9.2.1 An indemnifying party shall not have any liability for breaches of representations and warranties under Section 9.1.1.1 or Section 9.1.2.1 (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period other than with respect to the representation, warranty or covenant on which such claim is based, if any, representations and warranties set forth in Sections 4.3, 4.4, 4.7, 4.16.16, 4.21 and 5.6) or for Pre-Closing Environmental Liabilities under Section 9.1.
(b) Notwithstanding any other provision of this Article IX0.0.0.0:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant with respect to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000claim, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by claimed exceed Seventy Five Thousand Dollars ($75,000) (the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii"DE MINIMIS AMOUNT"), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.;
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any under Section 9.1.1.1 or Section 9.1.2.1, unless and until the total amount of Losses to the indemnified parties finally determined to arise thereunder based upon, attributable to or resulting from the breach of all representations and warranties of the Sellers or the Purchaser, as applicable, exceed(s), in the aggregate, Ten Million Dollars ($10,000,000) (the "DEDUCTIBLE"), disregarding any representation individual claim that does not exceed the De Minimis Amount; and warranty set forth in Section 5.12: (i) then only to the extent applicablethat such Losses exceed the Deductible;
(iii) with respect to any claim for indemnification under Section 9.1.1.4, Seller’s indemnification obligation shall be limited unless and until the total amount of Losses to the cost of indemnified parties resulting from Pre-Closing Environmental Liabilities, exceeds, in the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law aggregate, Two Million Dollars (including engineering or institutional controls$2,000,000) based on (the industrial use of "BASKET"), disregarding any individual claim that does not exceed the relevant facility or property, proximity of commercial and residential areas, and all other relevant factorsDe Minimus Amount; provided, that if the use total of such standards or engineering or institutional controls does not materially interfere with operations at Losses of all Purchaser Indemnified Parties exceed the affected facility and (ii) if any contamination at any Real Property that is amount of the Basket, then each Purchaser Indemnified Party shall, subject to indemnity by Seller is exacerbated due Section 9.2.1(iv), be entitled to recover the entire amount of such indemnified party's Losses; and
(iv) for any Losses in excess of Ninety Million Dollars ($90,000,000) (the "CAP") once the total amount of Losses to the negligenceindemnified parties indemnifiable under Section 9.1.1.1 and Section 9.1.1.4, gross negligence or willful misconduct as applicable, exceed, in the aggregate, the Cap.
9.2.2 An indemnifying party shall not have any liability for Losses attributable to Downers Grove Liabilities in excess of Buyer after the Closing Date, an amount equal to the extent such exacerbation increases Final Purchase Price once the cost of the investigation or remediation total amount of such contamination, Seller Losses exceeds the Final Purchase Price.
9.2.3 An indemnifying party shall not be responsible have any liability for Losses attributable to Asbestos Liabilities in excess of an amount equal to the Final Purchase Price once the total amount of such Losses exceeds the Final Purchase Price.
9.2.4 An indemnifying party shall not have any liability for Losses attributable to the General Electric Transportation Dispute in excess of Fifteen Million Dollars ($15,000,000) once the total amount of such increase Losses exceeds Fifteen Million Dollars ($15,000,000).
9.2.5 Anything in coststhis Agreement to the contrary notwithstanding, in no event shall the aggregate amount of all Losses indemnifiable by the Sellers to the indemnified parties under Sections 9.1.1.1 and 9.1.1.4, and under Section 9.1.1.3 with respect to Losses attributable to Downers Grove Liabilities, Asbestos Liabilities and the General Electric Transportation Dispute exceed the Purchase Price.
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Samples: Stock Purchase Agreement (Winfred Berg Licensco Inc)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to To the extent the Indemnitee gives notice of such claim Partnership Indemnified Parties are entitled to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable indemnification for indemnification Losses pursuant to Section 9.2(a)(i), Section 9.2(a)(iv9.3(a) or Section 9.2(b)(i) hereof (A) other than for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal Losses related to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.14.6), 5.2Anadarko shall not be liable for those Losses unless the aggregate amount of Losses exceeds 1% of the sum of (i) the Cash Consideration, 5.8plus (ii) the dollar value of the Unit Consideration on the Closing Date (the sum of (i) and (ii) being the “Aggregate Consideration”) (the “Deductible”), 5.13and then only to the extent of any such excess.
(b) In addition, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments the extent the Partnership Indemnified Parties are entitled to indemnification for indemnification Losses pursuant to Section 9.2(a)(i) or Section 9.2(b)(i9.3(a), respectivelyAnadarko shall not be liable for such Losses that exceed, in an aggregate amount in excess of one hundred percent (100%) the aggregate, 25% of the Purchase PriceAggregate Consideration less the Deductible.
(c) Notwithstanding anything contained in this Agreement Section 9.8(a) and (b), to the contraryextent the Partnership Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.3(b), except 9.3(c), or for claims arising from fraud, Anadarko shall be fully liable for such Losses without respect to the representations and warranties expressly contained Deductible in Article V Section 9.8(a) and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreementlimitations in Section 9.8(b), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In To the event that Buyer proceeds extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(a), the Partnership shall not be liable for those Losses unless the aggregate amount of Losses exceeds, in the aggregate, the Deductible, and then only to the Closing notwithstanding written notice from Seller prior extent of any such excess. In addition, to the Closing extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(a), the Partnership shall not be liable for such Losses that any breach by Seller of any representation or warranty in this Agreementexceed, individually or in the aggregate with any other breaches aggregate, 10% of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwisethe Aggregate Consideration less the Deductible.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Notwithstanding Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date9.8(d), to the extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(b) or for claims arising from fraud, the Partnership shall be fully liable for such exacerbation increases Losses without respect to the cost of Deductible and the investigation or remediation of such contamination, Seller shall not be responsible for any such increase limitations in costsSection 9.8(d).
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Limitations on Indemnification. (ai) A Party may assert Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable for any Losses indemnifiable pursuant to Section 10.2(a)(i) hereof (i) unless the aggregate amount of all such Losses indemnifiable pursuant to Section 10.2(a)(i) hereof for which indemnification is sought exceeds on a claim for indemnification hereunder cumulative basis $500,000 (the “Company Deductible”), and then only to the extent the Indemnitee gives notice of such claim excess, (ii) unless the Losses for any individual item for which indemnification is sought exceed $25,000 (any such item not exceeding $25,000 shall not be aggregated for purposes of clause (i) above, but any such items exceeding $25,000 shall be aggregated for purposes of clause (i) above) and (iii) in the aggregate in excess of $4,500,000 above the Company Deductible.
(ii) Notwithstanding anything to the Indemnifying Party contrary in accordance with this Agreement, Resource America and LFC shall not collectively be liable for any Losses indemnifiable pursuant to Section 9.3 prior 10.2(b)(iii) hereof (i) unless the aggregate amount of all such Losses indemnifiable pursuant to Section 10.2(b)(iii) hereof for which indemnification is sought exceeds on a cumulative basis $250,000 (the “REXI/LFC Deductible”), and then only to the expiration extent of such excess, (ii) unless the Losses for any individual item for which indemnification is sought exceed $25,000 (any such item not exceeding $25,000 shall not be aggregated for purposes of clause (i) above, but any such items exceeding $25,000 shall be aggregated for purposes of clause (i) above) and (iii) in the aggregate in excess of $1,000,000 above the REXI/LFC Deductible.
(iii) Notwithstanding anything to the contrary in this Agreement, the Purchasers (collectively) shall not be liable for any Losses indemnifiable pursuant to Section 10.2(d)(i) hereof (i) unless the aggregate amount of all such Losses indemnifiable pursuant to Section 10.2(d)(i) hereof for which indemnification is sought exceeds on a cumulative basis $750,000 (the “Purchaser Deductible”), and then only to the extent of such excess, (ii) unless the Losses for any individual item for which indemnification is sought exceed $25,000 (any such item not exceeding $25,000 shall not be aggregated for purposes of clause (i) above, but any such items exceeding $25,000 shall be aggregated for purposes of clause (i) above) and (iii) in the aggregate in excess of $5,500,000 above the Purchaser Deductible. Notwithstanding anything to the contrary in this Agreement, none of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, limitations set forth in this Section 9.1.
(b10.2(f)(iii) Notwithstanding shall apply to any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) misrepresentation or Section 9.2(b)(i) hereof (A) for any item or items arising out breach of the same factsPurchaser Fundamental Representations (it being understood and agreed that for purposes of determining whether any such inaccuracy or breach has occurred, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 all such representations and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% warranties of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, Purchasers that are qualified as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) materiality shall be deemed to be a single item for purposes of the foregoingnot so qualified).
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder under Section 9.2(a)(ii) or Section 9.2(b)(ii), as the case may be, only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival time period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1. Any claims pursuant to Section 9.2(a)(i) or Section 9.2(b)(i) must be asserted within one year following the Closing Date. Any claim for indemnification not made in accordance with Section 9.3 by a Party on or prior to the applicable date set forth in Section 9.1 or this Section 9.4(a), and the other Party's indemnification obligations with respect thereto, will be irrevocably and unconditionally released and waived.
(b) Notwithstanding any other provision of this Article IX:
: (i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable Seller will not have any indemnification obligations for indemnification pursuant to Section Indemnifiable Losses under Sections 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(iand 9.2(a)(ii) hereof (A) for any individual item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 25,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,00025,000, unless and until the aggregate amount of all Indemnifiable such Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 21% of the Purchase Price, in which case and then only to the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% extent of all such Indemnifiable Losses up to 2% of the Purchase Price excess; and (yii) all such Indemnifiable Losses in excess of 2no event will the aggregate indemnification to be paid by Seller under Sections 9.2(a)(i) and 9.2(a)(ii) exceed 50% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of Notwithstanding the foregoing, (x) the limitations set forth in Section 9.4(b)(i) will not apply to claims asserted by Buyer for breaches of Sections 5.1, 5.2, 5.3(a), 5.8(i), 5.18, and 5.20, and (y) the limitations set forth in Sections 9.4(b)(i) and 9.4(b)(ii) will not apply to claims asserted by Buyer arising from the intentional fraud of Seller.
(iic) Except as provided Notwithstanding any other provision of this Article IX: (i) Buyer will not have any indemnification obligations for Indemnifiable Losses under Sections 9.2(b)(i) and 9.2(b)(ii) (A) for any individual item where the Loss relating thereto is less than $25,000 and (B) in Section 9.4(b)(iii)respect of each individual item where the Loss relating thereto is equal to or greater than $25,000, neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an unless the aggregate amount in excess of twelve and one-half percent (12.5%) all such Losses exceeds 1% of the Purchase Price.
, and then only to the extent of such excess; and (iiiii) The in no event will the aggregate indemnification to be paid by Buyer under Sections 9.2(b)(i) and 9.2(b)(ii) exceed 50% of the Purchase Price. Notwithstanding the foregoing, (x) the limitations specified set forth in Section 9.4(b)(i9.4(c)(i) and Section 9.4(b)(ii) shall will not apply to Indemnifiable Losses arising out claims asserted by Seller for breaches of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, Sections 6.1, 6.2, or 6.3(a), 6.5, but and 6.6, and (y) the limitations set forth in no case shall either Sections 9.4(c)(i) and 9.4(c)(ii) will not apply to claims asserted by Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess arising from the intentional fraud of one hundred percent (100%) of the Purchase PriceBuyer.
(cd) Except as otherwise expressly provided herein, no representation or warranty of either Party contained in this Agreement or in any Ancillary Agreement will be deemed untrue or incorrect, and such Party will not be deemed to have breached a representation, warranty, or covenant as a consequence of the existence of any fact, circumstance, action, or event that is permitted to be taken by such Party under the terms of this Agreement or any Ancillary Agreement, or that is disclosed in this Agreement, any Ancillary Agreement, any Schedule, or Exhibit hereto, or any certificate or other instrument delivered in accordance with the terms hereof. <PAGE>
(e) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and this Agreement or in the Seller Disclosure SchedulesAncillary Agreements, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party Seller or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS. Any claims Buyer may have for breach of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in must be based solely on the aggregate with any other breaches of Seller’s representations and warranties of Seller set forth in this AgreementAgreement or the Ancillary Agreements. In furtherance of the foregoing, constitutes a Material Adverse Effectexcept for the representations and warranties contained in this Agreement or the Ancillary Agreements, no Buyer Indemnitees shall have any claim or recourse against Seller or acknowledges and agrees that none of Seller, any of its Affiliates with respect or any other Person will have or be subject to such breachany liability to Buyer or any other Person for, under this Article IX and Seller hereby disclaims all liability and responsibility for, any representation, warranty, projection, forecast, statement, or otherwise.
information made, communicated, or furnished (eorally or in writing) In addition to Buyer or any of Buyer's Representatives, including any confidential memoranda distributed on behalf of Seller relating to the Business, the Purchased Assets, or the Assumed Obligations or other limitations set forth publications or data room information provided to Buyer or Buyer's Representatives, or any other document or information in this Article IX, any form provided to Buyer or Buyer's Representatives in connection with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost sale of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law Purchased Assets, the assumption of the Assumed Obligations, and the transactions contemplated hereby (including engineering any opinion, information, projection, or institutional controls) based on the industrial use advice that may have been or may be provided to Buyer or Buyer's Representatives by any of the relevant facility or propertySeller's Representatives). BUYER HEREBY ACKNOWLEDGES THAT, proximity of commercial and residential areasEXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN ARTICLE V AND THE ANCILLARY AGREEMENTS, and all other relevant factors; providedTHE BUSINESS AND THE PURCHASED ASSETS ARE BEING PURCHASED ON AN "AS IS, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligenceWHERE IS" BASIS, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsWITH ALL FAULTS.
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to Claims against the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration R&W Insurance Policy; Cap on Losses of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1Buyers Indemnified Parties and Recourse.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii)The sole recourse of the Buyer Indemnified Parties for Losses based upon, in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same factsof, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal resulting from, related to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out reason of any breach or inaccuracy of any of the representations and warranties in of the Sellers (other than the Sellers Fundamental Representations) shall be against the R&W Insurance Policy.
(ii) The aggregate liability of the Sellers for Losses (x) pursuant to each of Section 5.19.02(a)(iii), 5.2Section 9.02(a)(v) and Section 9.02(a)(vi) shall be uncapped, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification and (y) pursuant to Section 9.2(a)(i9.02(a)(i), Section 9.02(a)(ii) or Section 9.2(b)(i), respectively9.02(a)(iv) shall, in an the aggregate, in no event exceed the Final Purchase Price provided, however, that the aggregate amount in excess of one hundred percent (100%) liability of the Purchase Price.
(cSellers for Losses pursuant to Section 9.02(a)(ii) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this AgreementSections 5.19(a) and 5.23(a), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases Losses result from (A) any non-compliance of such Carve-Out Financial Statements with the cost Carve-Out Accounting Principles or such Carve-Out Financial Statements containing a material misstatement or omission, or (B) any non-compliance of the investigation Specified Balance Sheet with the accounting principles set forth in Section 5.19 or remediation of such contaminationSpecified Balance Sheet containing a material misstatement or omission, Seller shall, in the aggregate, in no event exceed $5,000,000.
(iii) The parties hereto acknowledge and agree that if any Buyers Indemnified Party has any indemnification claims under this Article IX, such Buyers Indemnified Party shall seek recovery with respect to such claims as follows (A) if such claim is made pursuant to Section 9.02(a)(i), first from the R&W Insurance Policy and second, to the extent the coverage under the R&W Insurance Policy has been exhausted or is otherwise unavailable, from the Sellers directly, on a joint and several basis; and (B) with respect to all other claims pursuant to Section 9.02(a), from the Sellers directly, on a joint and several basis.
(iv) Notwithstanding anything to the contrary herein, the limitations set forth in Section 9.03(a)(i), Section 9.03(a)(ii) and Section 9.03(a)(iii) shall not be responsible for apply to Losses to the extent arising out of, relating to or otherwise by virtue of, directly or indirectly, any such increase in costsFraud of the Sellers.
(v) Notwithstanding anything to the contrary herein, (A) the Sellers’ obligations under this Article IX with respect to Section 5.19(a) shall terminate on the one (1)-year anniversary of the date on which the Specified Balance Sheet is delivered pursuant thereto and (B) the Sellers’ obligations under this Article IX with respect to Section 5.23(a) shall terminate on the one (1)-year anniversary of the date on which the Carve-Out Financial Statements are delivered pursuant thereto.
Appears in 1 contract
Limitations on Indemnification. (a) A No claim may be made or asserted nor may any Action be commenced pursuant to Sections 8.2 or 8.3 against any Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice breach of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the any representation, warranty or covenant contained herein, unless written notice of such claim or Action has been given by the Indemnified Party to the Indemnifying Party, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or Action (or if reasonable detail is not possible, setting forth information known at such time with respect to such claim), on or prior to the date on which the representation or warranty on which such claim or Action is based, if any, based ceases to survive as set forth in Section 9.1.8.1;
(b) Notwithstanding any other provision of anything to the contrary contained in this Article IXAgreement:
(i) Except as provided except in Section 9.4(b)(iiithe breaches of any Fundamental Representation, the representations set forth in Sections 2.7 (Brokers and Finders) and 3.21 (Brokers and Finders), in no event or the Tax Reps and Covenants, Seller shall either Party not be liable for any claim for indemnification pursuant to Section 9.2(a)(i8.2(a), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate amount of all Indemnifiable indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the that may be recovered from Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject pursuant to Section 9.4(b)(ii), to indemnification for 8.2(a) equals or exceeds one percent (x1%) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price (the “Deductible Amount”), at which point Seller shall be liable only for the amount of those Losses indemnifiable pursuant to Section 8.2(a) in excess of the Deductible Amount;
(ii) except in the case of breaches of any Fundamental Representation, the representations set forth in Sections 2.7 (Brokers and Finders) and 3.21 (yBrokers and Finders), or the Tax Reps and Covenants, no Losses may be claimed under Section 8.2(a) all such Indemnifiable by any Indemnified Party, nor shall any Losses be reimbursable or included in calculating the aggregate indemnifiable Losses set forth in subsection (i) of this Section 8.4(b), other than Losses in excess of 2% one hundred thousand dollars ($100,000) resulting from any single claim or aggregated claims arising out of the Purchase Price. All Indemnifiable related facts, events or circumstances; provided that, subject to this Section 8.4(b), after such amount is reached, all such Losses arising may be claimed under Section 9.2(a)(iv8.2(a) by an Indemnified Party;
(iii) except in the case of breaches of any Fundamental Representation, the representations set forth in Sections 2.7 (Brokers and Finders) and 3.21 (Brokers and Finders), or the Tax Reps and Covenants, the maximum amount of indemnifiable Losses that may be recovered from Seller for any amounts due under Section 8.2(a) shall be deemed an amount equal to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half ten percent (12.510%) of the Purchase Price.;
(iiiiv) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) the aggregate amount of Losses for which either Party is liable under this Article VIII shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) the amount of the Purchase Price.; . 62
(cv) Notwithstanding anything contained in this Agreement the right to the contraryindemnification, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedulespayment, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agentsreimbursement, or representatives, including other remedy based upon the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any inaccuracy or breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with will not be affected by any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller investigation conducted or any of its Affiliates with respect to such breach, under this Article IX knowledge acquired at any time whether before or otherwise.
(e) In addition to after the other limitations set forth in this Article IXdate hereof or the Closing Date, with respect to the accuracy or inaccuracy of such representation or warranty; and
(vi) no Party shall have any claim Liability pursuant to Section 8.2(a), (b) or (c) or Section 8.3(a), (b) or (c) for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: special, indirect, consequential (including lost profits) or punitive damages (other than (i) punitive damages payable to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard third parties or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject relating to indemnity by Seller is exacerbated due to the negligencea breach or alleged breach of Sections 3.6, gross negligence 3.11, 3.13 or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs3.15(b)).
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim The indemnification provided for indemnification hereunder only in Sections 9.01 and 9.02 shall be subject to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IXfollowing limitations:
(i) Except as provided in Section 9.4(b)(iii), in no event The Stockholders shall either Party not be liable obligated to pay any amounts for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items under this Article IX arising out of the same factsany Losses based upon, events arising out of or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) otherwise in respect of each individual item where any inaccuracy or breach disclosed in writing to GRS and specifically waived in writing by GRS prior to the Indemnifiable Loss relating thereto Closing.
(ii) Neither GRS, the Company nor the Stockholders shall be obligated to pay any amounts for indemnification under this Article IX, except those based upon, arising out of or otherwise in respect of Sections 3.02, 3.21, 5.22, 5.29, 3.28, 9.01 (ii) and (iii), 11.01 and 11.02 and Article IV hereof (the "Basket Exclusions"), until the aggregate indemnification payments, exclusive of the Basket Exclusions, equals one percent (1%) of the Purchase Price (the "Basket Amount"), whereupon GRS, or the Company and Stockholders, as the case may be, shall be obligated to pay any indemnification payments, including the Basket Amount, in full. It is equal to expressly understood that the Basket Amount shall serve as a "trigger" for indemnification and not as a "deductible" (for example, if the indemnity claims for which GRS or greater than the Stockholders would, but for the provisions of this subparagraph (ii), be liable is in the aggregate amount of $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 21% of the Purchase Price is $70,000, the Stockholders would then be liable for the entire $100,000 and (ynot just $30,000.00). This Section 9.04(ii) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall will not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor which any other Person is making party had actual Knowledge at any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller time prior to the Closing that date on which such representation and warranty is made or any intentional breach by Seller any party of any representation covenant or warranty in this Agreementobligation, individually and GRS or in the aggregate with any other breaches of Seller’s representations Stockholders, as the case may be, will be jointly and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates severally liable for all damages with respect to such breach, under this Article IX or otherwisebreaches.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Stock Purchase Agreement (General Roofing Services Inc)
Limitations on Indemnification. (a) A Party may assert a Shareholder shall have no Liability for any claim for indemnification hereunder only pursuant to Section 7.03(a)(1) if the extent the Indemnitee gives notice of Loss associated with such claim is less than five thousand dollars ($5,000) (any such claim being referred to the Indemnifying Party in accordance with as a “De Minimis Claim”). Shareholder shall have no Liability for indemnification pursuant to Section 9.3 prior to the expiration of the applicable survival period 7.03(a)(1)(ii) with respect to Losses for which indemnification is provided thereunder unless the representationaggregate amount of such Losses (including all Losses associated with De Minimis Claims) exceeds two hundred fifty thousand dollars ($250,000) (the “Indemnity Threshold”), warranty in which case Shareholder shall be liable for all Losses in excess of the Indemnity Threshold (excluding all Losses associated with De Minimis Claims); provided that in no event shall the aggregate indemnification to be paid by Shareholder (i) pursuant to Section 7.03(a)(1)(ii) exceed five million dollars ($5,000,000) or covenant on which such claim is based, if any, set forth in (ii) pursuant to Section 9.17.03(a)(1)(i) exceed twenty-five million dollars ($25,000,000).
(b) Notwithstanding Purchaser shall have no Liability for any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable claim for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv7.02(a)(1) or Section 9.2(b)(i) hereof (A) for if the Loss is associated with any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, De Minimis Claim. Purchaser shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments have no Liability for indemnification pursuant to Section 9.2(a)(i7.02(a)(1)(ii) or Section 9.2(b)(i), respectivelywith respect to Losses for which indemnification is provided thereunder unless the aggregate amount of such Losses (including all Losses associated with De Minimis Claims) exceeds the Indemnity Threshold, in an aggregate amount which case Purchaser shall be liable for all Losses in excess of twelve and onethe Indemnity Threshold (excluding all Losses associated with De Minimis Claims); provided that in no event shall the aggregate indemnification to be paid by Purchaser (i) pursuant to Section 7.02(a)(1)(ii) exceed five million dollars ($5,000,000) or (ii) pursuant to Section 7.02(a)(1)(i) exceed twenty-half percent five million dollars (12.5%) of the Purchase Price$25,000,000).
(iiic) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(iiSections 7.05(a)–7.05(b) shall not apply to Indemnifiable Losses arising out in respect of any breach fraudulent breaches of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess willful concealment of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied matter which breaches a representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposewarranty.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation No indemnified party shall be limited entitled to the cost recover from an indemnifying party more than once in respect of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costssame Losses.
Appears in 1 contract
Samples: Stock Purchase Agreement (Citizens Community Bancorp Inc.)
Limitations on Indemnification. (a) A Party may assert Notwithstanding anything to the contrary in Section 9.02 of this Agreement:
(i) no Buyer Indemnitees will be entitled to any indemnification for Losses in respect of claims under Sections 9.02(a)(i) and 9.02(a)(iii) if, with respect to any individual item of Loss (or, in the case of a claim series of related items of Loss, the aggregate thereof), the Loss is less than $25,000 (the “Minor Claims Threshold”); provided, however, that the Minor Claims Threshold will not apply to Losses resulting from breaches of the Fundamental Representations or from breaches of the representations and warranties set forth in Section 4.08 (Tax Matters);
(ii) (A) no Buyer Indemnitees will be entitled to any indemnification for indemnification hereunder Losses in respect of claims under Sections 9.02(a)(i) and 9.02(a)(iii) unless the aggregate of all such Losses (excluding claims that do not exceed the Minor Claims Threshold) would exceed on a cumulative basis an amount equal to $937,500 (the “Deductible”), and then only to the extent such Losses exceed the Indemnitee gives notice of such claim Deductible; provided, however, that (x) notwithstanding the foregoing, as a further limitation and still subject to the Indemnifying Party Deductible, no Buyer Indemnitees will be entitled to seek indemnification as provided in accordance with Section 9.3 prior Item 2 of Part B of Exhibit C and (y) the Deductible will not apply to the expiration Losses resulting from breaches of the applicable survival period with respect to Fundamental Representations or from breaches of the representation, warranty or covenant on which such claim is based, if any, representations and warranties set forth in Section 9.14.08 (Tax Matters); (B) no Buyer Indemnitees will be entitled to any indemnification for Losses in respect of claims under Section 9.02(a)(vi) with respect to matters described in Item 4 of Part C of Exhibit C unless the aggregate of all such Losses would exceed on a cumulative basis an amount equal to $750,000, and then only to the extent such Losses exceed $750,000; and
(iii) Seller’s aggregate liability in respect of claims to indemnify any Buyer Indemnitee for Losses pursuant to:
(A) Section 9.02(a)(i) (other than in respect to Losses resulting from the breach of the Fundamental Representations), Section 9.02(a)(ii), Item 3 of Part C of Exhibit C and Item 4 of Part C of Exhibit C will not exceed, in the aggregate, the Applicable Cap (provided, however, to the extent that Losses are taken into account in reducing the Applicable Cap in accordance with clauses (b)(iii), (b)(iv), (c)(iii) or (c)(iv) of the definition thereof, such Losses shall not also be applied against the Applicable Cap and its availability for purposes of determining remaining availability thereof);
(B) Section 9.02(a)(i), to the extent consisting of Losses resulting from the breach of the Fundamental Representations, and Section 9.02(a)(iv) will not exceed in the aggregate (together with all other Losses incurred or paid by Seller under this Agreement or received by Buyer from Escrow Funds), the Aggregate Cap;
(C) Item 1 of Part C of Exhibit C will not exceed in the aggregate the amount set forth therein.
(D) Item 2 of Part C of Exhibit C will not exceed in the aggregate the amount set forth therein;
(E) Sections 9.02(a)(iii) and 9.02(a)(v) will not exceed in the aggregate, the amount equal to the Intermediate Cap; provided, however, that (x) none of the limitations set forth in this Section (E) will apply in the case of fraud or criminal or willful misconduct, and (y) in no event will Seller’s aggregate liability under this Article IX exceed, subject to the other limitations set forth herein and on Exhibit C hereof, the Aggregate Cap.
(b) From and after the Closing (but subject in all cases to the terms and conditions and limitations of this Article IX and Exhibit C hereof), any indemnification of the Buyer Indemnitees for which Seller is liable hereunder will be effected,first, to the full extent of any amounts then remaining in the Indemnification Escrow Fund, by a payment made from the Indemnification Escrow Account in accordance with the terms of the Escrow and Paying Agent Agreement and, to the extent the remaining Escrow Funds are insufficient, directly from Seller.
(c) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for Seller will have no obligation to indemnify any of the representations Buyer Indemnitees from and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor against any Taxes of any Person that are attributable to (i) any Post-Closing Tax Period (or any other Person is making Losses directly related to any other express or implied such Taxes), except to the extent arising solely from a breach of the representation or warranty made by Seller in Sections 4.08(d), 4.08(h), 4.08(i)(A) or 4.08(m), (ii) Taxes of any kind Person other than the Company or nature whatsoever any of its Subsidiaries that are attributable to any lease, loan, or similar agreement entered into by the Company or any of its Subsidiaries in the ordinary course of business on or prior to the Closing Date, (including with respect iii) any transaction involving the Company or any of its Subsidiaries that is outside the ordinary course of business and occurs on the Closing Date after the Closing, (iv) any taxable income or gain recognized by the Company or any of its Subsidiaries that is attributable to Sellerthe purchase of the Shares pursuant to this Agreement (including, without limitation, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreementmanner in which Buyer finances such purchase), and Seller hereby disclaims or (v) any other representations or warrantiesbreach by Buyer of Section 7.03(f), whether made by such Party or its Affiliates, officers, directors, employees, agentsSection 7.03(g), or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeSection 7.03(j).
(d) In All payments under Sections 9.02 and 9.03 will be treated by the event that Buyer proceeds parties as an adjustment to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwisePurchase Price for all relevant Tax purposes.
(e) In addition The amount of any and all Losses under this Article IX will be determined net of (i) any amounts actually received by any Indemnified Party under or pursuant to any insurance coverage, indemnity, reimbursement arrangement, Contract or other arrangement (collectively, “Alternate Arrangements”), net of any costs incurred in connection with the collection thereof, including deductibles and (ii) any Tax detriment or Tax benefit actually realized with respect to such Losses as and to the other limitations set forth extent realized during the Tax Survival Period. For the avoidance of doubt, if a net Tax benefit is realized during the Tax Survival Period with respect to a Loss after an indemnity payment has been made, the Indemnified Party will promptly pay over that value of such net Tax benefit. The amount of Tax detriment or Tax benefit actually realized will be determined by comparing the Indemnified Party’s cumulative liability for Taxes without taking into account the relevant Loss with the Indemnified Party’s cumulative liability for Taxes taking into account the relevant Loss (and for such purpose, any deductions associated with such Loss will be treated as the last item of deduction). In any case where an Indemnified Person recovers under any Alternative Arrangement, any amount in respect of a matter for which such Indemnified Person was indemnified pursuant to this Article IX (either by Seller or from Escrow Funds), such Indemnified Person will promptly pay over to the Indemnifying Person an amount equal to the lesser of (A) the actual amount received under such Alternative Arrangements, net of any costs incurred in connection with the collection thereof, including deductibles, and (B) the actual amount of the indemnification payment previously paid by or on behalf of the Indemnifying Person (either by Seller or from Escrow Funds) with respect to such Losses. Each Indemnified Person will make such commercially reasonable efforts to collect amounts available under Alternative Arrangements and realize any Tax Benefit; provided, however, that satisfying such obligation will not be a condition to, or a limitation on, any party’s indemnification rights under this Article IX, except with respect to any indemnification by Seller for Item 3 of Part C of Exhibit C and Item 4 of Part C of Exhibit C for which each Indemnified Person is required to use commercially reasonable efforts to collect all amounts under any Alternative Arrangements. In the event that an Indemnifying Party makes any payment to any Indemnified Party for indemnification for Item 3 of Part C of Exhibit C hereof or for Item 4 of Part C of Exhibit C hereof for which such Indemnified Party could have collected on a claim under any Alternative Arrangement, the Indemnifying Party will be entitled to pursue claims and conduct litigation on behalf of such Indemnified Party and any of its successors, to pursue and collect on any indemnification or other remedy available to such Indemnified Party thereunder with respect to such claim and generally to be subrogated to the rights of such Indemnified Party. Except pursuant to a settlement agreed to by the Indemnifying Party, the Indemnified Party will not waive or release any contractual right to recover under any Alternative Arrangement for Item 3 of Part C of Exhibit C hereof or for Item 4 of Part C of Exhibit C hereof any loss subject to indemnification hereby without the prior written consent of the Indemnifying Party.
(f) In no event will Buyer Indemnitees be entitled to recover or make a claim for any amounts in respect of consequential, incidental or punitive damages, except in the case of fraud or criminal misconduct and except to the extent such damages were actually awarded, paid or incurred in a Third-Party Claim.
(g) Notwithstanding anything herein to the contrary, no party will be entitled to indemnification under this Article IX with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) Losses to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.the
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Diversified Holdings)
Limitations on Indemnification. The parties’ respective rights to indemnification under this Article VIII are subject to the following limitations: (a) A Party may assert a claim for No Buyer Indemnified Party, on the one hand, or Seller Indemnified Party, on the other hand, shall be entitled to indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representationan Indemnifiable Claim pursuant to Sections 8.2(a)(i) or 8.2(b)(i), warranty or covenant on which such claim is basedas applicable (or, if anymore than one such Indemnifiable Claim is asserted, set forth in Section 9.1.
with respect to all such Indemnifiable Claims) unless the aggregate amount of Damages with respect to such Indemnifiable Claim or Claims of all Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, exceeds $250,000 (b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iiithe “Threshold”), in no which event such Buyer Indemnified Party or Seller Indemnified Party, as the case may be, shall either Party be liable entitled to indemnification hereunder for indemnification all Damages with respect to all of its Indemnifiable Claims in excess of the Threshold, but subject to the Cap. Furthermore, the maximum aggregate liability of Seller and Principals with respect to all Indemnifiable Claims pursuant to Section 9.2(a)(i), 8.2(a)(i) and the maximum aggregate liability of Buyer with respect to all Indemnifiable Claims pursuant Section 9.2(a)(iv8.2(b)(i) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of shall each individual item where the Indemnifiable Loss relating thereto is be an amount equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 210% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii“Cap”); provided, neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i)however, respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of that any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including Damages with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims an Indemnifiable Claim of any other representations or warranties, whether made by such Buyer Indemnified Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice arising from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach inaccuracy of any representation and warranty set forth in Section 5.12: Sections 4.1 (iOrganization and Standing), 4.2 (Subsidiaries), 4.3 (Power and Authority), 4.4 (Capitalization), 4.8 (Taxes), the third sentence of 4.10(a) (Proprietary Rights), the first sentence of 4.11 (Title to the extent applicablePurchased Assets), Seller4.14 (Brokerage and Finder’s indemnification obligation shall be limited to the cost of the least restrictive standard Fees), 4.15 (Employee Benefit Matters) or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law 4.18 (including engineering or institutional controlsAccounts Receivable; Inventories) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible subject to or applied toward the Threshold or the Cap, and such Buyer Indemnified Party shall be entitled to indemnification for any such increase in coststhe entire amount of said Damages without regard to the Threshold or Cap.
Appears in 1 contract
Samples: Asset Purchase Agreement (Commercial Vehicle Group, Inc.)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder under Section 10.1(a)(i) or Section 10.1(b)(i), as the case may be, only to the extent the Indemnitee Indemnified Party gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival time period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.110.4. Any claim for indemnification not made in accordance with Section 10.2 by a Party on or prior to the applicable date set forth in Section 10.4 or this Section 10.3(a) (and the other Party’s indemnification obligations with respect thereto) will be irrevocably and unconditionally released and waived.
(b) Notwithstanding any other provision of this Article IX:
X: (i) Except as provided in Seller will not have any indemnification obligations under Section 9.4(b)(iii10.1(a), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any individual item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss dollar amount of Adverse Consequences relating thereto is less than $100,000 500,000 and (B) in respect of each individual item where the Indemnifiable Loss dollar amount of Adverse Consequences relating thereto is equal to or greater than $100,000500,000, unless and until the aggregate dollar amount of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, such Adverse Consequences exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(iiFourteen Million ($14,000,000), and then only to the extent of such excess; and (ii) in no event will the aggregate indemnification for to be paid by Seller under Section 10.1(a) exceed One Hundred Million ($100,000,000). Notwithstanding the foregoing, (x) 50% the limitations set forth in Section 10.3(b)(i) will not apply to claims asserted by Buyer for breaches of all such Indemnifiable Losses up to 2% of the Purchase Price Sections 3.1, 3.2, 3.3, 3.4(a), 3.5 and 3.11, (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided limitations set forth in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i10.3(b)(i) and Section 9.4(b)(ii10.3(b)(ii) shall will not apply to Indemnifiable Losses arising out claims asserted by Buyer for retained liabilities of any breach of any of Seller set forth in Sections 5.4(b)(i), 5.4(b)(ii), 5.7(l) and 5.7(n), and (z) the representations and warranties limitations set forth in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or 10.3(b)(i) and 10.3(b)(ii) will not apply to claims asserted by Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess arising from the intentional fraud and willful misconduct of one hundred percent (100%) of the Purchase PriceSeller.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person provision of this Article X: (i) Buyer will not have any indemnification obligations under Sections 10.1(b)(i) or (ii), (A) for any individual item where the dollar amount of Adverse Consequences relating thereto is making any other express less than $500,000 and (B) in respect of each individual item where the dollar amount of Adverse Consequences relating thereto is equal to or implied representation or warranty greater than $500,000, unless the aggregate dollar amount of any kind or nature whatsoever all such Adverse Consequences exceeds Fourteen Million (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement$14,000,000), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds then only to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller extent of any representation or warranty such excess; and (ii) in this Agreement, individually or in no event will the aggregate with any other breaches of Seller’s representations indemnification to be paid by Buyer under Sections 10.1(b)(i) and warranties in this Agreement10.1(b)(ii) exceed One Hundred Million ($100,000,000). Notwithstanding the foregoing, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(ex) In addition to the other limitations set forth in this Article IXSection 10.3(c)(i) will not apply to claims asserted by Seller for breaches of Sections 4.1, with respect to any claim for indemnification regarding any breach of any representation 4.2, 4.3(a) and warranty 4.5, and (y) the limitations set forth in Section 5.12: (iSections 10.3(c)(i) and 10.3(c)(ii) will not apply to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity claims asserted by Seller is exacerbated due to arising from the negligence, gross negligence or intentional fraud and willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsBuyer.
Appears in 1 contract
Samples: Stock Purchase Agreement (Equitable Resources Inc /Pa/)
Limitations on Indemnification. (a) A No claim may be made against an Indemnifying Party may assert a claim pursuant to its indemnification obligations set forth in Section 8.2 or 8.3 hereof unless the aggregate amount of all matters for which such party would (but for this provision) be liable (and of which matters the Indemnified Party followed the provisions of Section 8.4 above) exceeds $100,000 (the "Threshold Amount") and the Indemnified Party's right to indemnification hereunder shall only be with respect to the extent the Indemnitee gives notice of such claim to the Indemnifying Party amounts in accordance with Section 9.3 prior to the expiration excess of the applicable survival period Threshold Amount. For purposes of determining the Threshold Amount and Maximum Amount hereunder, the 56 57 Indemnifying Party's obligations shall be with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1Seller Group as a whole and the Buyer Group as a whole.
(b) Notwithstanding The Indemnifying Party shall not be obligated for any other provision of this Article IX:indirect, special or consequential damages or lost profits incurred by the Indemnified Party.
(ic) Except as provided in Section 9.4(b)(iii)Neither Buyer and Parent, in no event shall either Party on the one hand, nor Seller and Seller's Parent, on the other hand, will be liable in the aggregate to the other for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out hereto in excess of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% amount of the Purchase Price, in which case as adjusted, (the "Maximum Amount"). To the extent that the payments to the Buyer Indemnitees or Group from Seller and Seller's Parent pursuant to this Section 8, in the aggregate, has exceeded the Maximum Amount less the principal amount of the Note, as adjusted, the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all may offset any such Indemnifiable Losses up to 2% further claims against the principal amount of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingNote.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Asset and Business Purchase Agreement (Nytest Environmental Inc)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to To the extent the Indemnitee gives notice of such claim Partnership Indemnified Parties are entitled to the Indemnifying Party in accordance with Section 9.3 prior indemnification for Losses pursuant to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable 9.3(a) (other than for indemnification pursuant Losses related to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i4.6), respectively, in an Anadarko shall not be liable for those Losses unless the aggregate amount in excess of Losses exceeds one hundred percent (1001%) of the Purchase Pricesum of (A) the Cash Consideration plus (B) the dollar value of the Unit Consideration on the Closing Date (the sum of (A) and (B) being the “Aggregate Consideration”) (the “Deductible”), and then only to the extent of any such excess and (ii) Section 9.3(a) for Losses related to a breach of the representations and warranties in Section 4.6, Anadarko shall not be liable for those Losses unless the aggregate amount of Losses exceeds $100,000 and then only to the extent of any such excess.
(b) In addition, to the extent the Partnership Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.3(a), Anadarko shall not be liable for such Losses that exceed, in the aggregate, twenty-five percent (25%) of the Aggregate Consideration less the Deductible.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever clauses (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(da) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (iib) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Dateabove, to the extent the Partnership Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.3(b), 9.3(c), 9.3(d) or 9.3(e) or for claims arising from fraud, Anadarko shall be fully liable for such exacerbation increases Losses without respect to the cost of Deductible in Section 9.8(a) and the investigation or remediation of such contaminationlimitations in Section 9.8(b). (d) To the extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(a), Seller the Partnership shall not be responsible liable for those Losses unless the aggregate amount of Losses exceeds, in the aggregate, the Deductible, and then only to the extent of any such increase excess. In addition, to the extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 9.2(a), the Partnership shall not be liable for such Losses that exceed, in coststhe aggregate, ten percent (10%) of the Aggregate Consideration less the Deductible.
Appears in 1 contract
Samples: Contribution Agreement
Limitations on Indemnification. (a) A Subject to Section 7.4(d), an Indemnifying Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives shall not have any liability under Section 7.2(a) or 7.3(a) unless both (i) notice of a claim, specifying the misrepresentation or breach in reasonable detail, is delivered on or before 5:00 p.m., Pacific Time, on the first anniversary of the Closing Date and (ii) the aggregate amount of Damages incurred or to be incurred by the Purchaser Indemnified Parties or Seller Indemnified Parties, as the case may be, pursuant to Section 7.2 or 7.3, as applicable, exceeds $50,000 (the “Basket”) and, in such claim to event, the Indemnifying Party in accordance with Section 9.3 prior shall be required to pay the expiration entire amount of the applicable survival period with respect to the representation, warranty or covenant on which all such claim is based, if any, set forth in Section 9.1Damages.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant Subject to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii7.4(d), neither Seller nor Buyer Purchaser shall be required to make payments indemnify any Person (i) under Section 7.2(a), in the case of Purchaser, or Section 7.3(a), in the case of Seller, for indemnification an aggregate amount of Damages exceeding $200,000 (the “Lower Cap”) or (ii) under Sections 7.2(a), 7.2(b), 7.2(c), collectively, in the case of Purchaser, or Sections 7.3(a), 7.3(b) or 7.3(c), collectively, in the case of Seller, for an aggregate amount of Damages exceeding the Purchase Price (the “Purchase Price Cap”). For the avoidance of doubt, none of the Damages asserted by Purchaser pursuant to Section 9.2(a)(i7.2(b), 7.2(c) or Section 9.2(b)(i7.2(d), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either by Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i7.3(b), 7.3(c), 7.3(d) or Section 9.2(b)(i7.3(e), respectivelyregardless of whether asserted pursuant to more than one subsection of Section 7.2 or Section 7.3 (as applicable), shall be included in an aggregate amount the calculation of Damages pursuant to clause (i) above for purposes of determining whether the Lower Cap has been exceeded; nor shall any Damages asserted by Purchaser pursuant to Section 7.2(d), or by Seller pursuant to Section 7.3(d) or 7.3(e), regardless of whether asserted pursuant to more than one subsection of Section 7.2 or Section 7.3 (as applicable), shall be included in excess the calculation of one hundred percent Damages pursuant to clause (100%ii) above for purposes of determining whether the Purchase PricePrice Cap has been exceeded.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the purpose of this ARTICLE VII, the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor this Agreement that are qualified by materiality or Material Adverse Effect or any other Person is making similar qualification or standard shall be deemed to be made with such qualification or standard for purposes of determining whether a breach of any other express or implied such representation or warranty has occurred but shall be disregarded for purposes of determining the amount of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposerelated indemnifiable Damages.
(d) In Notwithstanding anything in this Section 7.4, none of the event that Buyer proceeds limitations set forth in this Section 7.4 shall apply to:
(i) any claim for indemnification based on Sections 7.2(d), 7.3(d) or 7.3(e); or
(ii) any claim based upon fraud. For the avoidance of doubt, claims described in this Section 7.4(d) can be asserted until the expiration of all applicable statutes of limitations, and are not subject to the Closing notwithstanding written notice from Seller prior to Basket, the Closing that any breach by Seller of any representation Lower Cap or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwisePurchase Price Cap.
(e) In addition The amount of Damages recoverable pursuant to this ARTICLE VII shall be net of any Tax benefit realized by the Indemnified Party as a result of the payment or incurrence of such Damages insurance or other recoveries actually received by the Indemnified Party in connection with the facts giving rise to the right of indemnification (but without reduction for any “deductible,” “self insurance retention” or any similar risk retention expense in respect of applicable insurance policies or other limitations set forth expenses incurred in this Article IX, connection with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation such recovery). Nothing herein shall be limited construed as obligating any Party to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if maintain any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsinsurance.
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only Notwithstanding anything to the extent the Indemnitee gives notice of such claim contrary in this Agreement, Buyer shall not be liable to the Indemnifying Seller Indemnified Parties, and Sellers shall not be liable to the Buyer Indemnified Parties, (i) in respect of any Losses incurred or suffered by such Indemnified Party in accordance connection with any individual Claim, unless such Losses exceed an amount equal to fifty thousand US Dollars ($50,000) (a “Qualifying Loss”), and (ii) in respect of Claims under Section 9.3 prior to the expiration of the applicable survival period 10.2(a)(i) or Section 10.2(b)(i) (other than with respect to the representationFundamental Representations or any Claims arising from, warranty in connection with or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iiirelated to Fraud), until such time as the aggregate amount of all Losses claimed by the Indemnified Parties under Section 10.2(a)(i) or Section 10.2(b)(i) exceeds Five Hundred Thousand US Dollars ($500,000) (the “Deductible”), and then only for such portion of the aggregate amount of all Qualifying Losses in no event shall either excess of the Deductible. The aggregate liability of a Party be liable in respect of claims for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv10.2(a)(i) or Section 9.2(b)(i10.2(b)(i) hereof (Aother than with respect to Fundamental Representations or any Claims arising from, in connection with or related to Fraud) for any item shall not exceed Nine Million US Dollars ($9,000,000.00). Sellers’ aggregate Liability under this Agreement or items arising out of otherwise in connection with the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is transactions contemplated by this Agreement shall not exceed an amount equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(b) With respect to each indemnification obligation in this Agreement: (i) all Losses shall be net of any insurance proceeds actually received by the Indemnified Party from a Third Party insurer, net of costs reasonably incurred by the Indemnified Party in seeking such collection (“Eligible Insurance Proceeds”); (ii) in no event shall an Indemnifying Party have Liability to the Indemnified Party for any consequential, special, incidental, indirect, punitive, exemplary, speculative, indirect or remote damages, damages for lost profits, damages based upon a multiple of earnings or diminution in value, or any similar damages, regardless of whether such damages were reasonably foreseeable, except to the extent payable in connection with a Third Party Claim; and (iii) The limitations specified all payments made by an Indemnifying Party to an Indemnified Party in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out respect of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification claim pursuant to Section 9.2(a)(i) or Section 9.2(b)(i)10.2 shall be treated as adjustments to the Purchase Price for Tax purposes (unless otherwise required by a final determination, respectively, in an aggregate amount in excess within the meaning of one hundred percent (100%) section 1313 of the Purchase PriceCode (or similar provision of state, local or non-U.S. Tax Law)).
(c) Notwithstanding anything contained In any case where an Indemnified Party recovers from a Third Party any Eligible Insurance Proceeds or any other amount in respect of any Losses for which an Indemnifying Party has actually paid or reimbursed such Indemnified Party pursuant to this Agreement Article 10, such Indemnified Party shall promptly pay over to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations Indemnifying Party such Eligible Insurance Proceeds or the transactions contemplated amount so recovered (after deducting therefrom the amount of expenses incurred by this Agreementit in procuring such recovery), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including but not in excess of the implied warranty sum of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) any amount previously paid by the Indemnifying Party to the extent applicable, Seller’s indemnification obligation shall be limited to the cost or on behalf of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use Indemnified Party in respect of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility claim and (ii) if any contamination at amount expended by the Indemnifying Party in pursuing or defending any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation claim arising out of such contamination, Seller shall not be responsible for any such increase in costsmatter.
Appears in 1 contract
Samples: Asset Purchase Agreement (Amneal Pharmaceuticals, Inc.)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to To the extent the Indemnitee gives notice of such claim Partnership Indemnified Parties are entitled to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable indemnification for indemnification Losses pursuant to Section 9.2(a)(i), Section 9.2(a)(iv10.3(a) or Section 9.2(b)(i) hereof (A) other than for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal Losses related to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.15.6 or Section 5.7), 5.2APC shall not be liable for those Losses unless the aggregate amount of Losses exceeds $40,150,000 (the “Deductible”), 5.8and then only to the extent of any such excess;
(b) In addition, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments the extent the Partnership Indemnified Parties are entitled to indemnification for indemnification Losses pursuant to Section 9.2(a)(i) or Section 9.2(b)(i10.3(a), respectivelyAPC shall not be liable for such Losses that exceed, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.aggregate, $1,003,750,000, less the Deductible;
(c) Notwithstanding anything contained in this Agreement Section 10.8(a) and Section 10.8(b), to the contrary, except extent the Partnership Indemnified Parties are entitled to indemnification (i) for Losses arising from a breach of the representations and warranties expressly contained in Article V Sections 5.6 and 5.7, (ii) pursuant to Section 10.3(b), 10.3(c), 10.3(d), or 10.3(e), or (iii) for claims arising from fraud, APC shall be fully liable for such Losses without respect to the Deductible in Section 10.8(a) and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreementlimitations in Section 10.8(b), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.;
(d) In To the event that Buyer proceeds extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 10.2(a), WES shall not be liable for those Losses unless the aggregate amount of Losses exceeds, in the aggregate, the Deductible, and then only to the Closing notwithstanding written notice from Seller prior extent of any such excess. In addition, to the Closing extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 10.2(a), WES shall not be liable for such Losses that any breach by Seller of any representation or warranty in this Agreementexceed, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreementaggregate, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.$401,500,000 less the Deductible; and
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Notwithstanding Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date10.8(d), to the extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 10.2(b) or for claims arising from fraud, WES shall be fully liable for such exacerbation increases Losses without respect to the cost of Deductible and the investigation or remediation of such contamination, Seller shall not be responsible for any such increase limitations in costsSection 10.8(d).
Appears in 1 contract
Samples: Contribution Agreement and Agreement and Plan of Merger (Western Gas Partners LP)
Limitations on Indemnification. Any claims for indemnity under this Agreement shall be subject to the following limitations and adjustments:
(a) A Party may assert a claim no indemnification payment for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification claims pursuant to Section 9.2(a)(i) or (other than for fraud and the Fundamental Representations) and Section 9.2(b)(i) (other than for fraud), respectivelyshall be made until the aggregate amount of all Losses for which a Seller or the Stockholder on one hand, or Spectrum or Buyer on the other hand, may be liable under this Article 9 exceeds $50,000, in which case Sellers and the Stockholder on one hand, or Spectrum and Buyer on the other hand, shall be liable for only such amounts in excess of $50,000;
(b) the maximum aggregate amount of indemnification payment under this Article 9 for claims pursuant to Fundamental Representations, pursuant to Section 9.2(a)(ii), (iii) and (iv) (in each case, other than for fraud) and pursuant to Section 9.2(b)(ii), (iii) and (iv) (in each case, other than for fraud) shall in no event exceed the Purchase Price;
(c) the amount of any claim for indemnification shall be subject to adjustment to reflect (A) any actual direct or indirect income, tax benefit (taking into account the amount of any indemnification actually received) resulting therefrom to the Indemnified Party and (B) any insurance coverage with respect thereto;
(d) indemnification for Retained Liabilities consisting of Product Liability Claims will be subject to in Section 9.3(b) and the threshold for such claims described in Section 6.13(b);
(e) in no event shall Sellers or the Stockholder be liable, in the aggregate, for indemnification for claims pursuant to Section 9.2(a)(i) (other than for fraud and the Fundamental Representations), in an aggregate amount in excess of twelve and one-half percent greater than five (12.55%) of the Purchase Price.
(iii) The limitations specified in , and claims made against the Escrow Account pursuant to Section 9.4(b)(i9.4(a) and Section 9.4(b)(ii(b) shall not apply to Indemnifiable Losses arising out of any breach of any be the sole and exclusive remedy of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required Indemnitees with respect to make payments for indemnification any claims pursuant to Section 9.2(a)(i) (other than for fraud and the Fundamental Representations);
(f) in no event shall Spectrum or Buyer be liable, in the aggregate, for indemnification for claims pursuant to Section 9.2(b)(i) (other than for fraud), respectively, in an aggregate amount in excess of one hundred percent greater than five (1005%) of the Purchase Price.; and
(cg) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V no event shall Sellers and the Seller Disclosure SchedulesStockholder, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, on the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement)one hand, and Seller hereby disclaims any Buyer and Spectrum, on the other representations or warrantieshand, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition be liable to the other limitations set forth for special, incidental, consequential or punitive damages, except that nothing in this Article IX, with respect clause (g) shall relieve an Indemnifying Party from liability for such damages where an Indemnified Party becomes liable therefore to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsa third party.
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to To the extent the Indemnitee gives notice of such claim Partnership Indemnified Parties are entitled to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable indemnification for indemnification Losses pursuant to Section 9.2(a)(i), Section 9.2(a)(iv10.3(a) or Section 9.2(b)(i) hereof (A) other than for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal Losses related to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.15.6 or Section 5.7), 5.2APC shall not be liable for those Losses unless the aggregate amount of Losses exceeds $40,150,000 (the “Deductible”), 5.8and then only to the extent of any such excess;
(b) In addition, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments the extent the Partnership Indemnified Parties are entitled to indemnification for indemnification Losses pursuant to Section 9.2(a)(i) or Section 9.2(b)(i10.3(a), respectivelyAPC shall not be liable for such Losses that exceed, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.aggregate, $1,003,750,000, less the Deductible;
(c) Notwithstanding anything contained in this Agreement Section 10.8(a) and Section 10.8(b), to the contrary, except extent the Partnership Indemnified Parties are entitled to indemnification (i) for Losses arising from a breach of the representations and warranties expressly contained in Article V Sections 5.6 and 5.7, (ii) pursuant to Section 10.3(b), 10.3(c), 10.3(d), or 10.3(e), or (iii) for claims arising from fraud, APC shall be fully liable for such Losses without respect to the Deductible in Section 10.8(a) and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreementlimitations in Section 10.8(b), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.;
(d) In To the event that Buyer proceeds extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 10.2(a), XXX shall not be liable for those Losses unless the aggregate amount of Losses exceeds, in the aggregate, the Deductible, and then only to the Closing notwithstanding written notice from Seller prior extent of any such excess. In addition, to the Closing extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 10.2(a), XXX shall not be liable for such Losses that any breach by Seller of any representation or warranty in this Agreementexceed, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreementaggregate, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.$401,500,000 less the Deductible; and
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Notwithstanding Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date10.8(d), to the extent the Anadarko Indemnified Parties are entitled to indemnification for Losses pursuant to Section 10.2(b) or for claims arising from fraud, XXX shall be fully liable for such exacerbation increases Losses without respect to the cost of Deductible and the investigation or remediation of such contamination, Seller shall not be responsible for any such increase limitations in costsSection 10.8(d).
Appears in 1 contract
Samples: Contribution Agreement and Agreement and Plan of Merger (Anadarko Petroleum Corp)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii9.5(f) and Section 9.5(g), in no event shall either Party be liable for the Selling Parties indemnification pursuant obligations to the Buyer Indemnified Parties under Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, 9.1 will not commence unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees Indemnified Party as a result thereof equals or exceeds in the Seller Indemnitees, respectively, exceeds 2% of aggregate $104,480.00 (the Purchase Price, in “Basket Amount”) at which case time the Selling Parties shall be obligated to indemnify the Buyer Indemnitees or Indemnified Parties for all Losses incurred by all the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% Buyer Indemnified Parties from the first dollar of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingLosses.
(iib) Except as provided in Section 9.4(b)(iii9.5(f) and Section 9.5(g), neither the Buyer’s indemnification obligations to the Seller nor Indemnified Parties under Section 9.2 will not commence unless and until the Losses incurred by the Seller Indemnified Parties as a result thereof equals or exceeds in the aggregate the Basket Amount, at which time the Buyer shall be required obligated to make payments indemnify the Seller Indemnified Parties for indemnification all Losses incurred by all Seller Indemnified Parties from the first dollar of such Losses.
(c) Except as provided in Section 9.5(d), Section 9.5(f) and Section 9.5(g), the aggregate amount of Losses for which any of the Selling Parties shall be liable for breaches of representations and warranties pursuant to Section 9.2(a)(i9.1(a) or Section 9.2(b)(ishall not exceed $12,951,000.00 (the “General Cap Amount”), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iiid) The limitations specified Except as provided in Section 9.4(b)(i9.5(f) and Section 9.4(b)(ii9.5(g), the aggregate amount of Losses for which any of the Selling Parties shall be liable for breaches of Fundamental Representations, Special Representations and pursuant to any clause of Section 9.1 other than Section 9.1(a) shall not exceed $35,975,000.00 (the “Special Cap Amount”).
(e) Except as provided in Section 9.5(f) and Section 9.5(g), the aggregate amount of Losses for which the Buyer shall be liable pursuant to Section 9.2 shall not exceed an amount equal to the General Cap Amount.
(f) Notwithstanding anything to the contrary contained herein, Section 9.5(a), Section 9.5(b), Section 9.5(c), Section 9.5(d) and Section 9.5(e) shall not apply to Indemnifiable Losses in connection with, incident to, resulting from or arising out of, directly or indirectly, Taxes, any intentional misrepresentation, fraud or criminal activity and such Losses shall not be subject to the Basket Amount and shall not be counted for purposes of any breach of any of determining whether the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, General Cap Amount or 6.5, but in no case shall either Seller Special Cap Amount has been met or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Priceexceeded.
(cg) Notwithstanding anything contained in this Agreement to the contrarycontrary contained herein, except for the representations Section 9.5(a) shall not apply to Losses in connection with, incident to, resulting from or arising out of, directly or indirectly, Floorplan Loan Liabilities, Compliance Liabilities, Employee Liabilities and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller Losses shall not be responsible for any such increase in costssubject to the Basket Amount.
Appears in 1 contract
Samples: Asset Purchase Agreement (KAR Auction Services, Inc.)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only Notwithstanding any other provision of this Article XI, Seller shall not be liable under Section 11.2(a)(i) unless and until the aggregate amount of all Losses pursuant to Section 5.2(b), Article VIII or Section 11.2(a) exceeds $200,000 (the extent "THRESHOLD AMOUNT"); provided, however, the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period Threshold Amount will not apply with respect to any Losses for which a Purchaser Indemnified Party is entitled to indemnification pursuant to Section 11.2(a)(i) arising from or caused by a breach of the representation, warranty representations or covenant on which such claim is based, if any, warranties set forth in Section 9.13.5, Section 3.7(b), Section 3.17 or Section 3.24. Upon reaching such amount, Seller shall be liable to the Purchaser Indemnified Parties for all Losses under Section 11.2(a)(i) up to an aggregate amount equal to $13,000,000 (the "MAXIMUM AMOUNT"); provided, however, the Maximum Amount will not apply with respect to any Losses for which a Purchaser Indemnified Party is entitled to indemnification pursuant to Section 11.2(a)(i) arising from or caused by a breach of the representations or warranties set forth in Section 3.5, Section 3.7(b), Section 3.17 or Section 3.24, and none of such Losses shall count towards satisfaction of the Maximum Amount; provided, further, in no event shall Seller's liability under this Article XI exceed the Purchase Price.
(b) Notwithstanding any other provision of this Article IX:
(iXI, Purchaser shall not be liable under Section 11.2(b)(i) Except as provided in unless and until the aggregate amount of all Losses pursuant to Article VIII or Section 9.4(b)(iii)11.2(b) exceeds the Threshold Amount. Upon reaching such amount, Seller shall be liable to the Purchaser Indemnified Parties for all Losses under Section 11.2(b)(i) up to an aggregate amount equal to the Maximum Amount; provided, however, in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising Purchaser's liability under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of this Article XI exceed the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Limitations on Indemnification. Except for fraud, claims made pursuant to subclause (aD) A Party may assert a claim for indemnification hereunder only of Section 8.4(a)(i), claims made pursuant to subclause (C) of Section 8.4(a)(i) to the extent the Indemnitee gives notice they relate to clauses (i), (ii), (iii), (iv), (v), (vii), (viii) or (ix) of such claim Section 2.2(c), claims made pursuant to the Indemnifying Party in accordance with subclause (B) of Section 9.3 prior to the expiration of the applicable survival period 8.4(a)(i) with respect to a breach by Seller of the representationprovisions of Section 2.3(b) or Section 6.13, warranty or covenant on which such claim is based, if any, set forth and claims arising from the Seller's investments in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iiientity that is listed on Schedule 2.1(c), in no event shall either Party claim may be liable made for indemnification pursuant to this Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for 8.4 with respect to any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000Loss, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by of the Buyer Indemnitees Purchaser Indemnified Parties on the one hand, or the Seller IndemniteesIndemnified Parties, respectivelyon the other hand, exceeds 2% of as the Purchase Pricecase may be, exceed One Million Dollars ($1,000,000) (the "Indemnification Threshold Amount"), in which case event the Buyer Indemnitees Purchaser Indemnified Parties or the Seller IndemniteesIndemnified Parties, as applicablethe case may be, shall be entitledentitled to seek indemnity for the amount by which such Losses for which indemnification is provided hereunder exceed the Indemnification Threshold Amount. Except for fraud, subject claims made pursuant to subclause (D) of Section 9.4(b)(ii8.4(a)(i), claims made pursuant to indemnification for subclause (xC) 50% of all such Indemnifiable Losses up Section 8.4(a)(i) to 2% of the Purchase Price and extent they relate to clauses (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
i), (ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification (iii), (iv), (v), (vii), (viii) or (ix) of Section 2.2(c), or claims made pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent subclause (12.5%B) of the Purchase Price.
(iiiSection 8.4(a)(i) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty the provisions of Section 2.3(b), and claims arising from the Seller's investments in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreemententity that is listed on Schedule 2.1(c), constitutes a Material Adverse Effectthe Purchaser Indemnified Parties on the one hand, no Buyer Indemnitees shall have any claim or recourse against the Seller or any of its Affiliates with respect to such breachIndemnified Parties, under this Article IX or otherwise.
(e) In addition to on the other limitations set forth in hand, as the case may be, shall not be indemnified pursuant to this Article IX, Section 8.4 with respect to any claim individual item of Loss if the aggregate of all Losses for which the Purchaser Indemnified Parties or the Seller Indemnified Parties, as the case may be, have received indemnification regarding any breach pursuant to this Section 8.4 shall have exceeded Fifteen Million Dollars ($15,000,000) plus the amount of any representation and warranty set forth increase in the Post-Closing Escrow pursuant to Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors6.13(h); provided, that the use however, that, except for fraud or claims made pursuant to subclause (D) of such standards or engineering or institutional controls does not materially interfere Section 8.4(a)(i) with operations at the affected facility and (ii) if any contamination at any Real Property that is subject respect to indemnity by Seller is exacerbated due Income Taxes payable to the negligenceState of New Hampshire arising out of the transactions contemplated hereby, gross negligence or willful misconduct of Buyer after the Closing Date, Purchaser Indemnified Parties' sole recourse for indemnification shall be with respect to the extent such exacerbation increases Post-Closing Escrow described in Section 3.3(a) and as provided in the cost of the investigation or remediation of such contaminationPost-Closing Escrow Agreement, Seller shall not be responsible for any such increase in costs.attached hereto as Exhibit J.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hearst Argyle Television Inc)
Limitations on Indemnification. Notwithstanding anything to the contrary contained in this Agreement (subject, in each case, to Section 8.04(h)):
(a) A no Indemnifying Party’s aggregate maximum Liability under this Article VIII shall exceed the Base Consideration;
(b) no Indemnifying Party may assert a shall have any Liability under Section 8.02(a)(i) [Seller General Representations and Warranties other than Tax Representations] or Section 8.02(b)(i) [Purchaser Representations and Warranties], as applicable, unless (i) with respect to any given claim or series of related claims for indemnification hereunder Losses, such claim or series of related claims is in excess of $50,000 (and then for the full amount of such Losses once the claim individually exceeds such amount) and (ii) the aggregate Liability for Losses suffered by the Seller Indemnitees or the Purchaser Indemnitees, respectively, thereunder exceeds an amount equal to $5,550,000, and then only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party excess;
(c) Seller shall not have any Liability under Section 8.02(a)(i) [Seller General Representations and Warranties other than Tax Representations] in accordance with excess of $5,550,000;
(d) Seller shall not have any Liability under (i) Section 9.3 prior to the expiration of the applicable survival period 8.02(a)(i) [Seller General Representations and Warranties other than Tax Representations], (ii) Section 8.02(a)(iv) [Seller Tax Representations and Warranties] and (iii) Section 8.02(a)(iii) [Indemnified Taxes] solely with respect to the representation, warranty or covenant on which such claim is based, if any, set forth Indemnified Taxes described in Section 9.1.
clauses (b) Notwithstanding and (c) of the definition of “Indemnified Taxes”, in excess of $11,100,000 in the aggregate;
(e) Seller shall not have any other provision Liability under Section 8.02(a)(vi) in excess of $9,000,000;
(f) Purchaser shall not have any Liability under Section 8.02(b)(i) [Purchaser Representations and Warranties] in excess of $5,550,000;
(g) neither Party shall have any Liability under this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) VIII for any item or items arising out of amount taken into account in the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% final determination of the Purchase Price pursuant to Section 2.04; and
(h) the limitations set forth in (i) this Section 8.04 shall not apply with respect to any claims for Fraud and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii8.04(b), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i8.04(c), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii8.04(d) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding breach of, or inaccuracy in, any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsFundamental Representations.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Adtalem Global Education Inc.)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only Notwithstanding anything to the extent the Indemnitee gives notice of such claim to the Indemnifying Party contrary contained in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IXAgreement:
(i) Except as provided in 13.4.1 Subject to Section 9.4(b)(iii)13.4.4, in no event shall either Party Seller be liable for indemnification for, or required to make any payment pursuant to Section 9.2(a)(i)13.2, Section 9.2(a)(iv) or Section 9.2(b)(i) hereof for any Seller Indemnifiable Damages suffered by any of the Purchaser Indemnified Parties (Aa) for any item or items arising out of the same factsDe Minimis Claims, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (Bb) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate dollar amount of all such Seller Indemnifiable Losses which are incurred Damages (excluding De Minimis Claims) exceeds Four Million Three Hundred Seventy-Five Thousand Dollars and 00/100 ($4,375,000) (such amount, the “Seller Basket Amount”), and then only to the extent of such excess.
13.4.2 Subject to Section 13.4.4, the maximum aggregate liability of Seller in respect of all claims or rights of action against Seller for Seller Indemnifiable Damages shall be limited to, and not exceed, Twenty-Six Million Two Hundred Fifty Thousand Dollars and 00/100 ($26,250,000) (the “Seller Liability Cap”).
13.4.3 Subject to Section 13.4.4, in no event shall Purchaser be liable for, or required to make any payment pursuant to Section 13.3 for any Purchaser Indemnifiable Damages suffered by the Buyer Indemnitees or Seller Indemnified Parties (a) for any De Minimis Claims, and (b) unless and until the aggregate dollar amount of all such Purchaser Indemnifiable Damages under this Agreement (excluding De Minimis Claims) exceeds One Million Five Hundred Thousand Dollars and 00/100 ($1,500,000) (such amount, the “Purchaser Basket Amount” and together with the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller IndemniteesBasket Amount, as applicable, shall be entitled, subject to Section 9.4(b)(iithe “Basket Amount”), and then only to indemnification for (x) 50% the extent of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingexcess.
13.4.4 Notwithstanding the foregoing provisions of this Section 13.4, (a) under no circumstances shall the Basket Amount or the Seller Liability Cap apply to Seller Indemnifiable Damages resulting from or arising out of (i) any breaches of or inaccuracies, when made, in the Seller’s Representations set forth in Section 6.1.1, Section 6.1.2, Section 14.24.2.1 or Section 14.24.2.2 or (ii) Except as provided in Section 9.4(b)(iii)any FCA Action, neither (b) under no circumstances shall the Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not Liability Cap apply to Seller Indemnifiable Losses Damages resulting from or arising out of any breach breaches of any of or inaccuracies, when made, in the representations and warranties Seller’s Representations set forth in Section 5.16.1.14, 5.2provided the maximum aggregate liability of Seller in respect of all claims or rights of action against Seller for Seller Indemnifiable Damages shall be limited to, 5.8and not exceed, 5.13an amount equal to Seller’s Net Proceeds, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
and (c) Notwithstanding anything contained in this Agreement under no circumstances shall the Basket Amount apply to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express Purchaser Indemnifiable Damages resulting from or implied representation or warranty arising out of any kind breaches of or nature whatsoever (including with respect to Seller, inaccuracies in the Business, the Purchased Assets, the Assumed Obligations Purchaser’s Representations in Section 6.3.1 or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeSection 6.3.2.
(d) In 13.4.5 Following the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this AgreementClosing, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition subject to the other limitations set forth in provisions of this Article IXXIII, Purchaser shall look solely to the Seller and Seller Guarantor (and to none of the other Seller Indemnified Parties) with respect to any claim against Seller for a breach of or inaccuracy in any of the Seller’s Representations and Seller’s Covenants, and shall have no recourse against any Seller Indemnified Party (other than Seller and Seller Guarantor) with respect to such claims, and none of the Purchaser Indemnified Parties shall (or shall have the right to) seek, pursue or enter any judgment or collect (or attempt to collect) an amount in excess of the Seller Liability Cap with respect to such matters. Purchaser shall be required to notify Seller prior to the Outside Claim Date of any claim against Seller for a breach of or inaccuracy in any of the Seller’s Representations or Seller’s Covenants, and to notify Seller prior to the Outside FCA Claim Date of any claim against Seller for indemnification regarding any breach with respect to Seller Indemnifiable Damages resulting from or arising out of any representation FCA Action, in each case pursuant to Section 13.2 by the delivery of a written notice (each such notice, a “Notice of Claim” and warranty set forth in Section 5.12each such claim identified therein, a “Noticed Claim”) setting forth: (i) the dollar amount of the Seller Indemnifiable Damages relating to the extent applicable, Seller’s indemnification obligation shall be limited to the cost Noticed Claim (or a reasonable estimate of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use amount of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and Noticed Claim, if reasonably estimable by Purchaser); (ii) the aggregate dollar amount of all prior Seller Indemnifiable Damages pursuant to Section 13.2 of this Agreement asserted by any of the Purchaser Indemnified Parties against Seller to date (or a reasonable estimate of the amount of all prior Noticed Claims, if any, if reasonably estimable); (iii) whether the Basket Amount (if applicable) has been exceeded; and (iv) the aggregate dollar amount of Seller Indemnifiable Damages paid to Purchaser or any contamination at other Purchaser Indemnified Party to date. If Purchaser and Seller cannot mutually agree upon the settlement of any Real Property such Noticed Claim, Purchaser shall be deemed to have waived its right to pursue such Noticed Claim (and any right to collect from Seller with respect to such Noticed Claim), unless Purchaser brings a court action with respect to such Noticed Claim on or prior to the date that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer thirty (30) days after the Closing Outside Claim Date, to or the extent such exacerbation increases the cost of the investigation or remediation of such contaminationOutside FCA Claim Date, Seller shall not be responsible for any such increase in costsas applicable.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NorthStar Healthcare Income, Inc.)
Limitations on Indemnification. (a) A Party Subject to Section 9.3(f), the Indemnified Parties, as a group, may assert not recover any Losses pursuant to a claim for indemnification hereunder only under Section 9.2(a)(i), subclause (y) of Sections 9.2(a)(ii), Section 9.2(a)(iii), or Section 9.5(c), (i) unless and until the Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $1,000,000 in Losses in the aggregate (the “Deductible”), in which case, subject to the extent other applicable limitations herein, the Indemnitee gives notice Indemnified Parties shall be entitled to recover Losses paid, incurred, suffered or sustained by the Indemnified Parties as a group in excess of the Deductible, and (ii) unless such claim or series of related claims exceeds $100,000 (the “Per Claim Threshold”), in which case, subject to the Indemnifying Party in accordance with Section 9.3 prior other applicable limitations herein, the Indemnified Parties shall be entitled to recover all Losses, including the expiration of Per Claim Threshold, paid, incurred, suffered or sustained by the applicable survival period Indemnified Parties with respect to the representation, warranty or covenant on which such claim is basedor series of related claims. For the avoidance of doubt, if any, the limitations set forth in this Section 9.19.3(a) shall not apply to claims under subclause (x) of Section 9.2(a)(ii) or clauses (iv) through (ix) of Section 9.2(a), inclusive.
(b) Notwithstanding Subject to Section 9.3(f), the Indemnified Parties’ sole and exclusive source of recovery for claims under Section 9.2(a)(i), subclause (y) of Section 9.2(a)(ii), clause (z) of Section 9.2(a)(vi), Section 9.2(a)(viii), and Section 9.5(c) shall be recourse against the Indemnity Escrow Fund. For the avoidance of doubt, the limitations set forth in this Section 9.3(b) shall not apply to claims under subclause (x) of Section 9.2(a)(ii), clauses (iii), (iv), (v), (vii) and (ix) of Section 9.2(a), or clauses (x) or (y) of Section 9.2(a)(vi) and the Indemnified Parties shall, subject to the other applicable limitations herein, be permitted to recover directly from the Indemnifying Parties for claims under subclause (x) of Section 9.2(a)(ii), clauses (iii), (iv), (v), (vii) and (ix) of Section 9.2(a), or clauses (x) or (y) of Section 9.2(a)(vi), in each case, only up to such Indemnifying Party’s Pro Rata Portion of such claim.
(c) Subject to Section 9.3(f), the aggregate liability of each Indemnifying Party for indemnification claims recovered directly from such Indemnifying Party under Section 9.2(a) (excluding, for the avoidance of doubt, claims recovered from the Indemnity Escrow Fund) shall be limited, in the aggregate, to a dollar amount equal to the sum of (i) the value of the Acquiror Ordinary Shares issued or issuable (including any Indemnity Escrow Shares transferred from the Escrow Agent) to such Indemnifying Party (or his, her, or its designee, assignee, transferee, or successor in interest), plus (ii) any and all amounts deducted or withheld in respect of Taxes or any Loan Repayment Amount with respect to such Indemnifying Party, plus (iii) such Indemnifying Party’s aggregate Per Share Expense Contribution.
(d) The amount of any Loss payable under this Article IX by an Indemnifying Party shall be net of any amounts actually recovered by the Indemnified Party from insurance policies, net of the following: (i) third party costs and expenses (including Taxes) incurred by such Indemnified Party or its Affiliates and its and their respective Representatives in procuring such recovery; (ii) any increases in premiums or premium adjustments to the extent attributable to such recovery (applicable to any past, present or future premiums); and (iii) deductibles and other provision amounts incurred in connection with such recovery; provided, however that, other than with respect to the Company D&O Tail Policy, the Indemnified Parties shall have no obligation to seek recovery under any insurance policies or to maintain any insurance policies for any period of time.
(e) The Indemnified Parties shall, to the extent required by applicable Law, use commercially reasonable efforts to mitigate Losses indemnifiable under this Article IX:
(i) Except as provided in Section 9.4(b)(iii); provided, however, that, notwithstanding the foregoing or anything else herein to the contrary, other than with respect to the Company D&O Tail Policy, in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same factsIndemnified Parties be required to assert any claim or otherwise seek recourse any against any current or former insurers, events insurance policies, customers, suppliers, resellers, vendors, partners, commercial counterparties, or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect other Representatives of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% any of the Purchase PriceIndemnified Parties or their respective Affiliates.
(f) Notwithstanding anything herein to the contrary, nothing in this Agreement shall limit (i) the liability of an Indemnifying Party for Fraud committed by such Indemnifying Party or of which case Fraud such Indemnifying Party had actual knowledge, or (ii) the Buyer Indemnitees right of Acquiror or any other Indemnified Party to pursue remedies under any Related Agreement against the Seller Indemniteesparties thereto. Notwithstanding anything herein to the contrary, as applicable, shall be entitled, but subject to Section 9.4(b)(ii)8.3, to indemnification if the Merger is not consummated, nothing in this Article IX shall limit the liability of any party hereto for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1representation, 5.2warranty, 5.8, 5.13, 5.17, 6.1, 6.2, covenant or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything agreement contained in this Agreement, any Related Agreement to (against the contrary, except for the representations parties thereto) or any certificates or other instruments executed and warranties expressly contained delivered by any party in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including connection with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Elastic N.V.)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only The liability of Optionor to the extent the Indemnitee gives notice Pabst Indemnified Parties in respect of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration any Losses imposed on, sustained, incurred or suffered by or asserted against any of the applicable survival period Pabst Indemnified Parties in respect of (i) any claims pursuant to Section 11.2(a) (other than with respect to Optionor’s Fundamental Representations) shall not exceed in the aggregate $1,500,000; (ii) any claims pursuant to Section 11.2(b) other than with respect to the representation, warranty or covenant on which such claim is based, if any, Fundamental Covenant shall not exceed in the aggregate $10,000,000; (iii) any claims pursuant to Section 11.2(a) with respect to the Fundamental Representation set forth in 3.1(g)(iii) and claims pursuant to Section 9.1.
11.2(b) with respect to the Fundamental Covenant shall not exceed in the aggregate $40,000,000, (iv) any claims pursuant to Section 11.2(e) shall be as set forth in paragraph (b) Notwithstanding of Schedule 1.4; and (v) any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification claims pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) 11.2 shall not exceed in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iiib) The limitations specified liability of Pabst to the Optionor Indemnified Parties in respect of any Losses imposed on, sustained, incurred or suffered by or asserted against any of the Optionor Indemnified Parties in respect of (i) any claims pursuant to Section 9.4(b)(i11.3(a)(i) and Section 9.4(b)(ii(other than with respect to Pabst’s Fundamental Representations) shall not apply to Indemnifiable Losses arising out of exceed in the aggregate $1,500,000; (ii) any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification claims pursuant to Section 9.2(a)(i11.3(a)(ii) or shall not exceed in the aggregate $10,000,000; (iii) any claims pursuant to Section 9.2(b)(i), respectively, 11.3(a)(v) shall be as set forth in an aggregate amount in excess of one hundred percent paragraph (100%b) of Schedule 1.4; and (iv) any other claims pursuant to Section 11.3 shall not exceed in the aggregate the Purchase Price.
(c) Notwithstanding anything contained The amount of any Losses payable under Article 11 by an Indemnifying Party will be (i) computed net of any insurance proceeds actually received by the Indemnified Party with respect thereto, and (ii) reduced by the amount of proceeds actually received by the Indemnified Party from any recovery from any third party in this Agreement respect of such Loss, in each case relating to the contrary, except matters described in the notice for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeclaim.
(d) In the event that Buyer proceeds No claim for indemnification under Article 11 may be made by either Party for any Losses to the Closing notwithstanding written notice from Seller prior extent such Losses were specifically included in the calculation of the adjustment to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect Purchase Price pursuant to such breach, under this Article IX or otherwise(Proration).
(e) In addition Any amounts payable pursuant to the other limitations set forth in indemnification obligations under this Article IX11 shall be paid without duplication, and in no event shall any Party be entitled to recover indemnification payments under different provisions of the Agreement in respect of the same Loss.
(f) If an Indemnified Party recovers an amount from a third party in respect of a Loss after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article 11, the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (i) the amount paid by the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereof, less (ii) the full amount of the Loss.
(g) Optionor and MillerCoors shall not be liable with respect to any claim made pursuant to Section 11.2(a) for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: if (i) Pabst had knowledge of SC1:4886116.33 such breach prior to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility Closing and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated Pabst has the right (due to such breach) to terminate this Agreement pursuant to Section 7.1(a) and nonetheless elects to Close the negligencetransactions contemplated hereunder. For purposes of this Section 11.9, gross negligence Pabst shall be deemed to have knowledge of any breach of a representation or willful misconduct of Buyer after warranty contained herein if the Closing Datebreach was disclosed to Pabst in the Data Room at least forty-eight (48) hours prior to Closing.
(h) NOTWITHSTANDING ANY PROVISION TO THE CONTRARY HEREIN, to the extent such exacerbation increases the cost of the investigation or remediation of such contaminationEXCEPT TO THE EXTENT AWARDED BY A COURT TO A THIRD PARTY PURSUANT TO A THIRD PARTY CLAIM, Seller shall not be responsible for any such increase in costsAN INDEMNIFIED PARTY WILL NOT BE ENTITLED TO RECOVER ANY CONSEQUENTIAL OR INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM ASSERTED PURSUANT TO THIS ARTICLE 11 OR INCLUDING ANY RECOVERY UNDER A “MULTIPLE OF PROFITS,” “MULTIPLE OF CASH FLOW,” “MULTIPLE OF EBITDA” OR SIMILAR VALUATION METHODOLOGY IN CALCULATING THE AMOUNT OF ANY INDEMNIFIABLE LOSSES.
(i) EXCEPT IN THE EVENT OF (A) FRAUD OR AN INTENTIONAL MISREPRESENTATION WITH AN INTENT TO MISLEAD OR DECEIVE, (B) WITH RESPECT TO THE COVENANTS OF OPTIONOR AND/OR MILLERCOORS (AND NOT ANY REPRESENTATIONS OR WARRANTIES), INTENTIONAL MISCONDUCT THAT MATERIALLY IMPAIRS THE VALUE OF, OR PABST’S USE OR OPERATION OF, THE PURCHASED ASSETS OR (C) AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION IN SECTION 10.2, SECTION 12.1 OR SECTION 12.2, THE RIGHTS OF INDEMNITY PROVIDED IN THIS ARTICLE 11 ARE PABST’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL CLAIMS OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY AND ALL BREACHES OR ALLEGED BREACHES OF ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS OF THE PARTIES, OR ANY OTHER PROVISION OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY) AND ALL OTHER REMEDIES AND RIGHTS OF INDEMNITY OR CONTRIBUTION, WHETHER CREATED BY LAW OR OTHERWISE, ARE HEREBY WAIVED.
Appears in 1 contract
Limitations on Indemnification. (a) A Except for Claims based on Fraud or Claims with respect to any breach of or inaccuracy in any of the Fundamental Representations, the Buyer Indemnified Parties shall not be entitled to any indemnification in respect of Losses incurred by any Buyer Indemnified Party may assert a claim pursuant to Section 8.1(a)(i) and Section 8.1(a)(ii): (i) for indemnification hereunder only to any individual item or Claim where the extent the Indemnitee gives notice Loss related thereto is less than $50,000 (any individual item or Claim in excess of such claim to amount, a “Qualifying Claim”), it being understood that any related claims for Loss arising out of a similar set of facts or circumstances shall be considered as an individual item or Claim for purposes of determining whether a Qualifying Claim has occurred, and (ii) unless and until the Indemnifying Party aggregate amount of such Losses in accordance with Section 9.3 prior to respect of all Qualifying Claims exceeds $400,000 (the expiration “Threshold Amount”), in which event if the aggregate amount of Losses exceeds the applicable survival period Threshold Amount the Buyer Indemnified Parties may recover only with respect to the representation, warranty or covenant on which amount of such claim is based, if any, set forth Losses in Section 9.1excess of the Threshold Amount.
(b) Notwithstanding Except for Claims based on Fraud or Claims with respect to any other provision breach of this Article IX:
(i) Except as provided or inaccuracy in Section 9.4(b)(iii)any of the Fundamental Representations, the maximum aggregate liability of the Seller in no event shall either Party be liable for indemnification respect of Losses incurred by the Buyer Indemnified Parties pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii8.1(a)(i) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectivelyexceed, in the aggregate, an aggregate amount in excess of one hundred percent (100%) equal to 25% of the Purchase Price.
(c) Notwithstanding anything contained The maximum aggregate liability of (i) the Seller in this Agreement respect of Losses incurred by the Buyer Indemnified Parties due to any Claims based on (A) any breach of or inaccuracy in any of the Fundamental Representations, (B) Fraud or (C) pursuant to Sections 8.1(a)(ii) through (iv) shall not exceed, in the aggregate, an amount equal to the contraryPurchase Price, except for the representations and warranties expressly contained (ii) Buyer, in Article V and respect of Losses incurred by the Seller Disclosure SchedulesIndemnified Parties due to any Claims based on Fraud or pursuant to Section 8.1(b) shall not exceed, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect in the aggregate, an amount equal to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposePurchase Price.
(d) In The aggregate amount of all Losses for which the event that Buyer proceeds Seller shall be liable pursuant to this Article VIII shall not exceed, in the aggregate, an amount equal to the Closing notwithstanding written notice from Seller prior to Purchase Price actually received by the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition No Indemnifying Party shall be liable for any Losses unless a written claim for indemnification in accordance with Section 8.2 is given by the Indemnified Party to the Indemnifying Party within the applicable survival period specified in Section 8.4(f) (it being understood that the survival period associated with any claim that is timely given shall not expire until the resolution of such claim).
(f) The representations and warranties contained in Article III and Article IV (other limitations than the Fundamental Representations and the representations and warranties set forth in Section 3.11 and Section 3.12) shall survive the Closing until 18 months following the Closing Date. The Fundamental Representations, the representations and warranties set forth in Section 3.11 and Section 3.12, and the right to indemnification of the Buyer Indemnified Parties pursuant to Section 8.1(a)(iii) and Section 8.1(a)(iv) shall survive the Closing until the fifth anniversary of the Closing Date. The right to indemnification of the Buyer Indemnified Parties pursuant to Section 8.1(a)(v) shall survive the Closing until the eighth anniversary of the Closing Date. The representations and warranties contained in Article V (other than the Fundamental Representations) shall survive the Closing until 18 months following the Closing Date. The covenants and agreements of the parties shall survive the Closing until performed, or, if earlier, for the term set forth in this Article IXAgreement.
(g) Notwithstanding any other provision herein to the contrary, the Indemnifying Party shall not be required to indemnify, defend or hold harmless any Indemnified Party against or reimburse any Indemnified Party for any item of Loss to the extent any Indemnified Party has been indemnified or reimbursed for such amount under any other provision of this Agreement or any other agreement with the Indemnifying Party in respect of the same item of Loss.
(h) The Seller shall cease to have liability in respect of any Claim arising out of a matter or circumstance affecting one or more of the Acquired Companies if the notice given in the terms described in this Agreement in relation to the relevant matter or circumstance is given at a time when the applicable Acquired Company has ceased to be a Subsidiary of the Buyer, but only, however, for any Claims with respect to any claim for indemnification regarding any breach of or inaccuracy in any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial representations and residential areas, warranties contained in in Article III and all other relevant factors; provided, Article IV that the use of such standards or engineering or institutional controls does are not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsFundamental Representations.
Appears in 1 contract
Samples: Equity Purchase Agreement (Laureate Education, Inc.)
Limitations on Indemnification. The indemnification provided for in Sections 8.02 and 8.03 shall be subject to the following limitations:
(a) A Party may assert a claim for indemnification hereunder only Subject to the extent terms of this Agreement, the Indemnitee gives notice Sellers and the Key Employees shall not be obligated to pay any indemnification amounts for Losses pursuant to Section 8.02(a) and only for unintentional breaches of Section 4.01 under Section 8.02(b) unless and until the aggregate amount of all Losses pursuant thereto exceeds an amount equal to $100,000 (the "Basket"), whereupon the Buyer shall be entitled to indemnification under Section 8.02(a) for all such claim to the Indemnifying Party in accordance with Losses including without limitation unintentional breaches of Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in 4.01 under Section 9.18.02(b).
(b) Notwithstanding any other provision In the case of this Article IX:
a breach by the Sellers or the Key Employees of: (i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) any covenant or Section 9.2(b)(i) hereof (A) for any item or items arising out agreement of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees Sellers or the Seller IndemniteesKey Employees contained in this Agreement, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties contained in Section 5.1Sections 2.04, 5.22.10, 5.82.12, 5.132.13, 5.172.22, 6.12.23, 6.22.25, or 6.5, 2.28 and 2.29 the Buyer shall be entitled to indemnification for all such Losses but in no case shall either Seller or Buyer be required limited to make payments for indemnification the aggregate amount of the consideration paid to the Sellers and the Key Employees pursuant to Section 9.2(a)(iSections 1.06(a) or Section 9.2(b)(iand (b), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.; and
(c) Notwithstanding anything contained in this Agreement to In the contrary, except for case of a breach by the Sellers and the Key Employees of all other representations and warranties expressly contained in Article V II hereof, and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty for unintentional breaches of any kind or nature whatsoever (including with respect to SellerSection 4.01, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this AgreementBuyer shall be entitled to indemnification for all such Losses but shall be limited to an aggregate of $10,000,000. Clauses (a), (b) and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty (c) of merchantability this Section 8.04 are subject to paragraphs (d) and any implied warranty of fitness for a particular purpose(e) below.
(d) In Subject to Section 8.01 hereof, no claims for indemnification in respect of Sections 8.02
(a) or 8.03(a) shall be made after the event that Buyer proceeds to date, if any, on which the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any applicable covenant, representation or warranty in this Agreement, individually or in upon which such claim was based ceases to survive pursuant to Section 8.01. No claim for indemnification shall be made for unintentional breaches under Section 4.01 if not asserted prior to two (2) years after the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwiseClosing Date.
(e) In addition to The limitations on the other limitations indemnification obligations set forth in this Article IX, with respect Section 8.04 shall not apply to any claim for indemnification regarding Excluded Liabilities or any breach and all liabilities, other than Assumed Liabilities, of any representation and warranty set forth in Section 5.12: (i) the Sellers or the Key Employees related to the extent applicable, Seller’s indemnification obligation shall be limited to Business first arising before the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Effective Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mediq Inc)
Limitations on Indemnification. (a) A Party may assert Notwithstanding the foregoing provisions of Section 11.2, except in the event of fraud, intentional misrepresentation or intentional wrongdoing by either of the Sellers, (i) the Sellers shall not be liable, pursuant to Section 11.2(i) or (ii) for any Losses suffered by any Buyer Indemnitee until the aggregate of all Losses claimed by the Buyer Indemnitees thereunder exceeds, on a claim for indemnification hereunder cumulative basis, an amount equal to $500,000, and then only to the extent of any such excess; (ii) the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event Sellers shall either Party not be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A11.2(i) for any item individual items relating to a breach of a representation or items arising out of the same facts, events warranty in Sections 4.5 or circumstances 4.12 where the Indemnifiable Loss relating thereto is less than $100,000 5,000, and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable such Losses which are incurred or is less than $20,000; (iii) the aggregate liability of the Sellers pursuant to Section 11.2 (but not pursuant to Section 11.3) for Losses suffered by the Buyer Indemnitees or shall in no event exceed $5,000,000; and (iv) without limiting the Seller Indemniteeslimitation set forth in the preceding clause (iii), respectively, exceeds 2% the aggregate liability of the Purchase Price, in which case Sellers pursuant to Section 11.2 (but not pursuant to Section 11.3) for Losses suffered by the Buyer Indemnitees with respect to matters or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% claims of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification which Sellers first receive notice pursuant to Section 9.2(a)(i11.5 after the eighteen (18) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) month anniversary of the Purchase Price.
Closing Date shall in no event exceed $3,000,000 in the aggregate. The limitation set forth in the preceding clause (iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(iiiv) shall not apply to Indemnifiable Losses arising any matter or claim that, directly or indirectly, relates to or arises out of any breach of any of the representations and warranties or in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2connection with, or 6.5results from, but in no case shall either Seller any matter(s) or Buyer be required to make payments for indemnification claim(s) of which Sellers have been notified pursuant to Section 9.2(a)(i11.5 before the eighteen (18) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) month anniversary of the Purchase PriceClosing Date.
(b) Neither party hereto shall be liable to any indemnitee for punitive damages or such other party’s lost profits claimed by such other party resulting from such first party’s breach of its representations, warranties or covenants hereunder.
(c) Notwithstanding anything contained in this Agreement to The Buyer acknowledges and agrees that, should the contraryClosing occur, except for the representations its sole and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including exclusive remedy with respect to Sellerany and all claims relating to this Agreement, the BusinessFacility, the Purchased Assets, the Excluded Assets, the Assumed Obligations Liabilities or the transactions contemplated by this Agreement), and Seller hereby disclaims any (other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agentsthan claims of, or representativescauses of action arising from, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(dfraud, intentional misrepresentation or intentional wrongdoing by either Seller) In the event that Buyer proceeds shall be pursuant to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations indemnification provisions set forth in this Article IXXI, with respect and that amounts held by the Escrow Agent pursuant to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: the Closing Escrow Agreement shall constitute (i) the sole and exclusive source of recourse for the Buyer Indemnitees in connection with any claims made pursuant to the extent applicableSection 11.2 (other than claims of, or causes of action arising from, fraud, intentional misrepresentation or intentional wrongdoing by either Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if a non-exclusive source of recourse for the Buyer Indemnitees in connection with any contamination at any Real Property that is subject claims made pursuant to indemnity by Seller is exacerbated due to Section 11.3. In furtherance of the negligenceforegoing, gross negligence or willful misconduct of the Buyer hereby waives, from and after the Closing DateClosing, to any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud, intentional misrepresentation or intentional wrongdoing by either Seller) the extent such exacerbation increases Buyer or any other Buyer Indemnitee may have against the cost Sellers or any of the investigation their Affiliates or remediation any of such contamination, Seller shall not be responsible for any such increase in costs.their
Appears in 1 contract
Samples: Asset Purchase Agreement (American Retirement Corp)
Limitations on Indemnification. The Party making a claim under this Article VIII is referred to as the “Indemnified Party,” and the Party against whom such claims are asserted under this Article VIII is referred to as the “Indemnifying Party.” The indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations:
(a) A The Indemnifying Party may assert a claim shall not be liable to the Indemnified Party for indemnification hereunder only to under Section 8.2(a), Section 8.2(b), Section 8.3(a), or Section 8.3(b) as the extent case may be, until the Indemnitee gives notice aggregate amount of such claim to all Losses in respect of indemnification under Section 8.2(a), Section 8.2(b) and Section 8.2(c), on the one hand, or on the other hand, Section 8.3(a) and Section 8.3(b) exceeds $200,000 (the “Deductible”), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in accordance with Section 9.3 prior to the expiration excess of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1Deductible.
(b) Notwithstanding any other provision The aggregate amount of this Article IX:all Losses for which Seller shall be liable pursuant to Section 8.2(b) as the case may be, shall not exceed $5,000,000.
(ic) Except as provided in The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 9.4(b)(iii8.2(a), in Section 8.2(c), Section 8.3(a), or Section 8.3(b) as the case may be, shall not exceed $1,000,000.
(d) In no event shall either any Indemnifying Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) any Indemnified Party for any item punitive, incidental, consequential, special or items arising out indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the same factsbreach or alleged breach of this Agreement, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect diminution of each individual item where the Indemnifiable Loss relating thereto is equal to value or greater than $100,000, unless and until the aggregate any damages based on any type of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingmultiple.
(iie) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable be liable under this Article VIII for any Losses based upon or arising out of any inaccuracy in or breach of any of the representations and or warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either of Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything Company contained in this Agreement if Buyer had knowledge of such inaccuracy or breach prior to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeClosing.
(df) In Notwithstanding the event foregoing, Buyer and Seller agree that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller 8.4 shall not be responsible for any such increase in costsapply where a Fraud Claim is brought by either Buyer or Seller.
Appears in 1 contract
Limitations on Indemnification. (a) A Party may assert a claim The indemnification provided for indemnification hereunder only in Sections 9.01 and 9.02 shall be subject to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IXfollowing limitations:
(i) Except as provided in Section 9.4(b)(iii), in no event The Shareholder shall either Party not be liable obligated to pay any amounts for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items under this Article IX arising out of the same factsany Losses based upon, events arising out of or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) otherwise in respect of each individual item where any inaccuracy or breach disclosed in writing to GRS and specifically waived in writing by GRS prior to the Indemnifiable Loss relating thereto is equal Closing.
(ii) Neither GRS, the Companies nor the Shareholder shall be obligated to pay any amounts for indemnification under this Article IX, except those based upon, arising out of or greater than $100,000otherwise in respect of Sections 3.02, unless 3.21, 3.28, 5.22, 5.29, 9.01 (ii) and (iii), 11.01 and 11.02 and Article IV hereof (the "Basket Exclusions"), until the aggregate indemnification payments, exclusive of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller IndemniteesBasket Exclusions, respectively, exceeds 2% equals one percent (1%) of the Purchase PricePrice (the "Basket Amount"), in which case the Buyer Indemnitees whereupon GRS, or the Seller IndemniteesCompanies and the Shareholder, as applicablethe case may be, shall be entitledobligated to pay any indemnification payments, subject to Section 9.4(b)(iiincluding the Basket Amount in full. It is expressly understood that the Basket Amount shall serve as a "trigger" for indemnification and not as a "deductible" (for example, if the indemnity claims for which GRS or the Shareholder would, but for the provisions of this subparagraph (ii), to indemnification for (x) 50% be liable is in the aggregate amount of all such Indemnifiable Losses up to 2$200,000, and 1% of the Purchase Price is $180,000, the Shareholder would then be liable for the entire $200,000 and (ynot just $20,000). This Section 9.04(ii) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall will not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor which any other Person is making party had actual Knowledge at any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller time prior to the Closing that date on which such representation and warranty is made or any intentional breach by Seller any party of any representation covenant or warranty in this Agreementobligation, individually and GRS or in the aggregate with any other breaches of Seller’s representations Shareholder, as the case may be, will be jointly and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates severally liable for all damages with respect to such breach, under this Article IX or otherwisebreaches.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Stock Purchase Agreement (General Roofing Services Inc)
Limitations on Indemnification. (a) A Party may assert a claim The indemnification provided for indemnification hereunder only in Sections 9.01 and 9.02 shall be subject to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IXfollowing limitations:
(i) Except as provided in Section 9.4(b)(iii), in no event The Stockholders shall either Party not be liable obligated to pay any amounts for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items under this Article IX arising out of the same factsany Losses based upon, events arising out of or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) otherwise in respect of each individual item where any inaccuracy or breach disclosed in writing to GRS and specifically waived in writing by GRS prior to the Indemnifiable Loss relating thereto is equal Closing.
(ii) Neither GRS, the Company nor the Stockholders shall be obligated to pay any amounts for indemnification under this Article IX, except those based upon, arising out of or greater than $100,000otherwise in respect of Sections 3.02, unless 3.13, 3.21, 3.28, 5.03, 5.14, 5.22, 5.28, 9.01 (ii) and (iii), 11.01 and 11.02 and Article IV hereof (the "Basket Exclusions"), until the aggregate indemnification payments, exclusive of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller IndemniteesBasket Exclusions, respectively, exceeds 2% equals one percent (1%) of the Purchase PricePrice (the "Basket Amount"), in which case the Buyer Indemnitees whereupon GRS, or the Seller IndemniteesCompany and Stockholders, as applicablethe case may be, shall be entitledobligated to pay any indemnification payments, subject to Section 9.4(b)(iiincluding the Basket Amount, in full. It is expressly understood that the Basket Amount shall serve as a "trigger" for indemnification and not as a "deductible" (for example, if the indemnity claims for which GRS or the Stockholders would, but for the provisions of this subparagraph (ii), to indemnification for (x) 50% be liable is in the aggregate amount of all such Indemnifiable Losses up to 2$30,000, and 1% of the Purchase Price is $40,000, the Stockholders would then be liable for the entire $40,000 and (ynot just $10,000). This Section 9.04(ii) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall will not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor which any other Person is making party had actual Knowledge at any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller time prior to the Closing that date on which such representation and warranty is made or any intentional breach by Seller any party of any representation covenant or warranty in this Agreementobligation, individually and GRS or in the aggregate with any other breaches of Seller’s representations Stockholders, as the case may be, will be jointly and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates severally liable for all damages with respect to such breach, under this Article IX or otherwisebreaches.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Stock Purchase Agreement (General Roofing Services Inc)
Limitations on Indemnification. 7.3.1 The provisions for indemnity under Section 7.1.1(a) or Section 7.1.2(a) shall be effective only (a) A Party may assert a for any individual claim for indemnification hereunder only to or series of related claims arising from the extent same facts and circumstances where the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
Loss exceeds $[*] and (b) Notwithstanding any other provision when the aggregate amount of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable all Losses for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) claims or Section 9.2(b)(i) hereof (A) for any item or items series of related claims arising out of from the same facts, events or facts and circumstances where the Indemnifiable Loss relating thereto in excess of $[*] for which indemnification is less than sought from any Indemnifying Party exceeds $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price[*], in which case the Buyer Indemnitees Indemnified Party shall be entitled to indemnification of the Indemnified Party’s Losses in excess thereof. In no event shall any Indemnifying Party have liability for indemnification under (i) (A) Section 7.1.1(a) or (B) Section 7.1.2(a), as applicable, or (ii) under (A) Section 7.1.1(b) or (B) Section 7.1.2(b), as applicable, in either case (clauses (ii)(A) and (ii)(B)), with respect to any failure to perform or any breach of any covenant, agreement or obligation contained in Article 4, for any amount exceeding, in the Seller Indemniteesaggregate, $[*]; provided, however, that the limitations on indemnification under this Section 7.3.1 shall not apply to breaches of any Fundamental Rep.
7.3.2 The Indemnified Party shall take all commercially reasonable steps to mitigate any Losses incurred by such Party upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any indemnification rights hereunder. The amount of Losses recovered by an Indemnified Party under Section 7.1.1 or Section 7.1.2, as applicable, shall be entitledreduced by (a) any amounts actually recovered by the Indemnified Party from a Third Party in connection with such claim and (b) the amount of any insurance proceeds paid to the Indemnified Party relating to such claim (net of the amount of any associated increase in insurance premiums), in each case ((a) and (b)), out of the Indemnified Party’s costs of recovery. Buyer shall use its commercially reasonable efforts to collect insurance proceeds for any Loss that is subject to indemnification by Seller under Section 9.4(b)(ii), to indemnification for 7.1.
1. If any amounts referenced in the preceding clauses (xa) 50% of all such Indemnifiable Losses up to 2% and (b) are received after payment by the Indemnifying Party of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed full amount otherwise required to be a single item for purposes of paid to an Indemnified Party pursuant to this Article 7, the foregoingIndemnified Party shall repay to the Indemnifying Party, promptly after such receipt, any amount that the Indemnifying Party would not have had to pay pursuant to this Article 7 had such amounts been received prior to such payment.
(ii) Except as provided 7.3.3 If the Indemnified Party receives any payment from an Indemnifying Party in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification respect of any Losses pursuant to Section 9.2(a)(i) 7.1.1 or Section 9.2(b)(i)7.1.2 and the Indemnified Party could have recovered all or a part of such Losses from a Third Party based on the underlying claim asserted against the Indemnifying Party, respectively, the Indemnified Party shall assign such of its rights to proceed against such Third Party as are necessary to permit the Indemnifying Party to recover from the Third Party the amount of such payment.
7.3.4 The representations and warranties of Seller and Buyer contained in an aggregate amount this Agreement shall survive the Closing and continue in excess of twelve full force and one-half percent (12.5%) effect thereafter through and including the first anniversary of the Purchase Price.
Closing Date (iii) The limitations specified such date, the “Survival Date”); provided, that the Fundamental Reps shall remain in Section 9.4(b)(i) full force and Section 9.4(b)(ii) effect and shall not apply survive indefinitely or, if applicable, until 60 days following the expiration of the applicable statute of limitations. Any obligation of a Party to Indemnifiable Losses arising out indemnify the other Party in respect of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, covenant or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations agreement set forth in this Article IX, with 4 shall survive the Closing through and including the Survival Date. Any obligation of a Party to indemnify the other Party in respect to any claim for indemnification regarding of any breach of any representation and warranty set forth in Section 5.12: (i) covenant or agreement which is to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after performed following the Closing Date, to shall survive until the extent such exacerbation increases the cost applicable statute of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costslimitations except as otherwise specified herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aegerion Pharmaceuticals, Inc.)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only Subject to Section 8.4(c) below, neither Seller nor Purchaser shall be obligated to indemnify the extent Seller Indemnified Parties or the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period Purchaser Indemnified Parties, respectively, with respect to the representation, warranty or covenant on any Losses as to which such party is otherwise entitled to assert any claim is basedfor indemnification, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) 8.2 or Section 9.2(b)(i) hereof (A) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,0008.3, unless and until the aggregate amount of all Indemnifiable the Losses which are of the Seller Indemnified Parties or the Purchaser Indemnified Parties, as the case may be, pursuant to Section 8.2 or Section 8.3 of this Agreement exceeds One Hundred Thousand Dollars ($100,000) in the aggregate (the “Deductible Amount”); provided, however, that thereafter the indemnifying party shall indemnify the other for any amounts in excess of, and not including, the Deductible Amount. Subject to Section 8.4(c) below, the maximum aggregate cash liability and obligation for any claims or Losses under this Agreement shall be capped at (and not exceed) Four Million Dollars ($4,000,000).
(b) In calculating the amount of Losses suffered or incurred or suffered by the Buyer Indemnitees Seller Indemnified Parties or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller IndemniteesPurchaser Indemnified Parties, as applicable, or for which indemnification is sought hereunder there shall be entitled, subject deducted (i) amounts actually recovered under any insurance policy or agreement with respect to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate the amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach reduction in income Taxes attributable to such Losses which directly or indirectly inures to the benefit of those parties for any Tax year as a result of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Pricesuch Losses.
(c) Notwithstanding anything contained to the contrary in this Agreement to Agreement, the contrary, except for limitations on indemnity set forth in Section 8.4(a) shall not apply in the case of Losses resulting from (i) any breach of the representations and warranties expressly contained in Article V Sections 3.1, 3.2, 3.3, 3.5, 3.6, 3.10, 3.11, 3.13, 4.l, 4.2 and 4.6 of this Agreement or (ii) fraud, willful misconduct or intentional misrepresentation in the Seller Disclosure Schedulesnegotiation, neither Seller nor any other Person is making any other express execution or implied representation or warranty performance of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees No party hereto shall have any claim or recourse against Seller or obligation to indemnify any of its Affiliates with respect to such breach, other party for Losses under this Article IX or otherwise.
(e) In addition Agreement unless the indemnified party delivers written demand for indemnification in accordance with Section 8.5 before the expiration of the applicable Survival Period; provided, that the obligations of the parties hereto to indemnify any other party for Losses under this Agreement shall not terminate at the other limitations set forth in this Article IX, end of the applicable Survival Period with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) indemnifiable Losses as to which the indemnified party shall have delivered such demand to the extent applicable, Seller’s indemnification obligation shall be limited to indemnifying party before the cost expiration of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costsSurvival Period.
Appears in 1 contract
Samples: Unit Purchase Agreement (Supernus Pharmaceuticals Inc)
Limitations on Indemnification. (a) A Party may assert a claim The indemnification provided for indemnification hereunder only in Sections 9.01 and 9.02 shall be subject to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IXfollowing limitations:
(i) Except as provided in Section 9.4(b)(iii), in no event The Stockholders shall either Party not be liable obligated to pay any amounts for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (A) for any item or items under this Article IX arising out of the same factsany Losses based upon, events arising out of or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) otherwise in respect of each individual item where any inaccuracy or breach disclosed in writing to GRS and specifically waived in writing by GRS prior to the Indemnifiable Loss relating thereto Closing.
(ii) Neither GRS, the Company nor the Stockholders shall be obligated to pay any amounts for indemnification under this Article IX, except those based upon, arising out of or otherwise in respect of Sections 3.02, 3.13, 3.21, 3.28, 5.22, 5.29, 9.01 (ii) and (iii), 11.01 and 11.02 and Article IV hereof (the "Basket Exclusions"), until the aggregate indemnification payments, exclusive of the Basket Exclusions, equals one percent (1%) of the Purchase Price (the "Basket Amount"), whereupon GRS, or the Company and Stockholders, as the case may be, shall be obligated to pay any indemnification payments, including the Basket Amount, in full. It is equal to expressly understood that the Basket Amount shall serve as a "trigger" for indemnification and not as a "deductible" (for example, if the indemnity claims for which GRS or greater than the Stockholders would, but for the provisions of this subparagraph (ii), be liable is in the aggregate amount of $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% of all such Indemnifiable Losses up to 21% of the Purchase Price is $70,000, the Stockholders would then be liable for the entire $100,000 and (ynot just $30,000). This Section 9.04(ii) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall will not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor which any other Person is making party had actual Knowledge at any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller time prior to the Closing that date on which such representation and warranty is made or any intentional breach by Seller any party of any representation covenant or warranty in this Agreementobligation, individually and GRS or in the aggregate with any other breaches of Seller’s representations Stockholders, as the case may be, will be jointly and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates severally liable for all damages with respect to such breach, under this Article IX or otherwisebreaches.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
Samples: Stock Purchase Agreement (General Roofing Services Inc)
Limitations on Indemnification. (a) A Party may assert a Notwithstanding anything to the contrary in this Article VII or elsewhere in this Agreement, in no event shall any Seller be required to provide indemnification with respect to any claim for indemnification hereunder only made pursuant to Section 7.2(b)(i) or Section 7.2(c)(i): (i) if the Losses associated with such claim (or group of related claims arising out of the same or similar circumstances) are less than Twenty-Five Thousand Dollars ($25,000) (the “De Minimis Claim Amount”); or (ii) unless and until the aggregate dollar amount of all Losses of the Purchaser Indemnified Parties for all such claims that would otherwise be indemnifiable pursuant to Section 7.2(b)(i) or Section 7.2(c)(i) (but without giving effect to any Loss or Losses below the De Minimis Claim Amount) exceeds One Million Five Hundred Thousand Dollars ($1,500,000) (the “Indemnification Deductible”); provided, however, that if the aggregate amount of all such Losses exceeds the Indemnification Deductible, the Purchaser Indemnified Parties shall be entitled to indemnification for the full amount of all such Losses and not just the amount in excess of the Indemnification Deductible; and provided further, that notwithstanding the foregoing, the De Minimis Claim Amount and the Indemnification Deductible shall not apply to the extent the Indemnitee gives notice of such claim to the Indemnifying Fundamental Representations and, accordingly, any claims by a Purchaser Indemnified Party in accordance with Section 9.3 prior to the expiration respect of a Fundamental Representation of the Company or the Sellers shall be indemnified hereunder from the first dollar of any applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1Losses.
(b) Notwithstanding any other provision of anything to the contrary in this Article IX:
(i) Except as provided VII or elsewhere in Section 9.4(b)(iii)this Agreement, in no event shall either Party any Seller be liable required to provide indemnification (i) with respect to any claim for indemnification made pursuant to Section 9.2(a)(i), Section 9.2(a)(iv7.2(b)(i) or Section 9.2(b)(i7.2(c)(i) hereof (A) for any item or items arising out of other than with respect to the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(iiFundamental Representations), to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) exceeding such Seller’s allocable portion of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) Indemnification Cap, determined by such Seller’s Equity Interest Percentage; provided, however, the Indemnification Cap shall not apply to Indemnifiable Losses arising out suffered by the Purchaser Indemnified Parties as a result of any breach of any inaccuracies in or breaches of the representations and warranties Fundamental Representations of the Sellers, which shall be excluded in Section 5.1calculating when the Indemnification Cap is reached, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required (ii) with respect to make payments any claim for indemnification made pursuant to Section 9.2(a)(i7.2(b)(i) or Section 9.2(b)(i), respectively7.2(c)(i) for any Losses suffered by the Purchaser Indemnified Parties as a result of inaccuracies in or breaches of the Fundamental Representations of the Sellers, in an aggregate amount in excess exceeding such Seller’s allocable portion of one hundred percent (100%) of the Purchase Price, determined by such Seller’s Equity Interest Percentage and (iii) with respect to any claim for indemnification made pursuant to Section 7.2(b)(v) through (viii), in an amount exceeding such Seller’s allocable portion of Purchase Price, determined by such Seller’s Equity Interest Percentage. For the avoidance of doubt, the Indemnification Cap shall not apply to the matters referred to in Section 7.2(b)(ii) through (viii) or Section 7.2(c)(ii).
(c) Notwithstanding anything contained to the contrary in this Article VII or elsewhere in this Agreement in no event shall the Purchaser be required to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty in this Agreement, individually or in the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, provide indemnification with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in made pursuant to Section 5.12: 7.2(c)(i): (i) to if the extent applicable, Seller’s indemnification obligation shall be limited to the cost Losses associated with such claim (or group of related claims arising out of the least restrictive standard same or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law similar circumstances) are less than the De Minimis Claim Amount; or (including engineering or institutional controlsii) based on unless and until the industrial use aggregate dollar amount of all Losses of the relevant facility Seller Indemnified Parties for all such claims that would otherwise be indemnifiable pursuant to Section 7.2(c)(i) (but without giving effect to any Loss or property, proximity of commercial and residential areas, and all other relevant factorsLosses below the De Minimis Claim Amount) exceeds the Indemnification Deductible; provided, however, that if the use aggregate amount of all such standards Losses exceeds the Indemnification Deductible, the Seller Indemnified Parties shall only be entitled to indemnification for the full amount of all such Losses and not just the amount in excess of the Indemnification Deductible; and provided further, however, that notwithstanding the foregoing, the De Minimis Claim Amount and the Indemnification Deductible shall not apply to the Fundamental Representations and, accordingly, any claims by a Seller Indemnified Party in respect of a Fundamental Representation of the Purchaser shall be indemnified hereunder from the first dollar of any applicable Losses.
(d) Notwithstanding anything to the contrary in this Article VII or engineering elsewhere in this Agreement in no event shall the Purchaser be required to provide indemnification with respect to any claim for indemnification made pursuant to Section 7.2(c)(i) in an amount exceeding the Indemnification Cap; provided, however, the Indemnification Cap shall not apply to Losses suffered by the Seller Indemnified Parties as a result of inaccuracies in or institutional controls does not materially interfere with operations at breaches of the affected facility Fundamental Representations of the Purchaser, which shall be excluded in calculating when such Indemnification Cap is reached and (ii) if any contamination at any Real Property that is instead shall be subject to indemnity by Seller is exacerbated due a separate indemnification cap equal to the negligencePurchase Price. For the avoidance of doubt, gross negligence or willful misconduct of Buyer after the Closing Date, Indemnification Cap shall not apply to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase matters referred to in costsSection 7.2(d)(ii).
Appears in 1 contract
Samples: Share Purchase Agreement (GTT Communications, Inc.)
Limitations on Indemnification. (a) A Party may assert a claim All representations and warranties of the Company and Parent under this Agreement will survive the Closing until, and will expire at, 5:00 p.m. New York time on the earlier of (i) the date on which the final audit report on the audited financial statements of the Company and its Subsidiaries for indemnification hereunder only the fiscal year ended December 31, 2015 is delivered, and (ii) April 30, 2016 (such earlier date, the “General Survival Date”), except for representations and warranties contained in Sections 4.1(a), 4.2(a), (b), (c) and (e), 4.3(a), (b) and (c) and 4.22 (the “Company Fundamental Representations”), and in Sections 5.1(a), 5.2(a), 5.2(b), 5.3 and 5.11 (the “Parent Fundamental Representations”), which shall survive the Closing indefinitely. All covenants requiring performance prior to or at the extent Closing shall expire immediately after the Indemnitee gives notice Closing, except for the covenants contained in Sections 6.2, 6.9, 6.10 and 7.3, which shall expire on the General Survival Date. The provisions of this Agreement dealing with the Escrow Shares and Escrow, and all covenants set forth in this Agreement that are to be performed following the Closing, shall survive the Closing and continue in full force and effect until such claim to the Indemnifying Party covenants are performed in accordance with Section 9.3 prior to the expiration terms of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1this Agreement.
(b) Notwithstanding any other provision of this Article IX:
Neither the Parent Indemnified Parties nor the Seller Indemnified Parties (ieach, an “Indemnified Party”) Except as provided in shall be entitled to seek indemnification under Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i11.1(a)(i), Section 9.2(a)(iv11.1(b)(i) or Section 9.2(b)(i12.1(a)(ii) hereof (A) for any item or items arising out of the same factsas applicable, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate amount of all Indemnifiable Losses which are incurred or Damages suffered by all Parent Indemnified Parties or all Seller Indemnified Parties, as the Buyer Indemnitees or case may be, exceeds in the aggregate an amount equal to $2,500,000 (the “Basket Amount”), and then such Indemnified Party shall only be entitled to indemnification for such aggregate amount of Damages that exceeds $2,500,000.
(c) Neither the Parent Indemnified Parties nor the Seller IndemniteesIndemnified Parties shall be deemed to have incurred any Damages under Section 11.1(a)(i) or Section 11.1(b)(i), respectivelyas applicable, unless the claim (or series of related claims, claims having a common or substantially similar cause or claims that arise out of reasonably common circumstances) for Damages exceeds 2% $50,000 (the “De Minimis Amount”).
(d) The aggregate amount of all payments to which the Purchase PriceParent Indemnified Parties or Seller Indemnified Parties shall be entitled to receive under Section 11.1(a), in which case the Buyer Indemnitees Section 11.1(b) or the Seller IndemniteesSection 12.1(a), as applicable, shall be entitled, subject in no event exceed an amount equal to Section 9.4(b)(ii$10,000,000 (the “Cap”), which for the avoidance of doubt shall not preclude or limit the Parent Indemnified Parties’ right to indemnification for (x) 50% of all such Indemnifiable Losses up to 2% of recover under any insurance policy, including the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoingR&W Policy.
(iie) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer None of the Indemnified Parties shall be required entitled to make payments seek indemnification for indemnification Damages under this Article XI or Article XII to the extent that the amount of Damages had been fully accounted for in any of the adjustments to the Merger Consideration pursuant to Section 9.2(a)(i) 3.1, including in any component of Indebtedness, Net Working Capital or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half percent (12.5%) of the Purchase PriceTransaction Expenses.
(iiif) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) Any Indemnified Party’s right to indemnification, payment of Damages or other remedies pursuant to this Article XI or Article XII shall not apply to Indemnifiable Losses arising out of be affected by any breach of any of the representations and warranties in Section 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2investigation conducted, or 6.5, but in no case shall either Seller any knowledge or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) information acquired (or Section 9.2(b)(icapable of being acquired), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Indemnified Party (or any Representative of such Indemnified Party or its Affiliates) at any time, officerswhether before or after the Closing Date, directorsrelating to the facts, employeesmatters or circumstances constituting or resulting in the breach (alleged or otherwise) of the representation, agentswarranty, covenant or representatives, including the implied warranty of merchantability and any implied warranty of fitness for a particular purposeagreement giving rise to such Damages.
(dg) In The amount of any Damages for which indemnification is provided under this Agreement shall be reduced by (i) any amounts realized by an Indemnified Party as a result of any indemnification, contribution or other payment by any third party (net of any costs of recovery), (ii) any insurance proceeds after giving effect to any applicable deductible or retention (net of any increase in premium or other costs or expenses resulting from collection under the event that Buyer proceeds applicable insurance policies) or other amounts realized by the Indemnified Party from third parties with respect to such Damages and (iii) taking into account any tax savings actually realized in the taxable year in which the applicable indemnification payment is made by the Indemnified Party with respect to such Damage or in a prior taxable year (“Tax Benefits”), and if the Tax Benefit is realized after the indemnity payment has been made, the Indemnified Party shall promptly pay to the Closing notwithstanding written notice Indemnifying Party the amount of that Tax Benefit (it being agreed that the amount of any Tax Benefit actually realized shall be reduced by any additional Tax cost incurred by the Indemnified Party arising from the receipt of the applicable indemnification payment hereunder); provided, that nothing in this provision shall give the Indemnifying Party the right to review the Indemnified Party’s Tax Returns; provided, however, that the Indemnified Party shall provide the Indemnifying Party with certificates from the chief financial officer of the Company, in the case of the Parent Indemnified Parties, and the Sellers’ Representative, in the case of Seller prior Indemnified Parties, as to whether or not there has been a realization of such Tax Benefits.
(h) The Indemnified Party agrees to use its commercially reasonable efforts to (A) mitigate all Damages and (B) timely make and diligently pursue any claims for insurance, Tax Benefits and/or other payments available from third parties (including any indemnification available to the Closing Company pursuant to that certain Agreement and Plan of Merger (and the exhibits thereto), dated as of July 23, 2013, by Crestview DSW Investors, L.P. and the other parties thereto) with respect to Damages for which it will seek indemnification under this Article XI and Article XII; provided, that any out-of-pocket Damages incurred in connection with such efforts to mitigate shall themselves be Damages indemnifiable hereunder.
(i) For purposes of this Article XI and Article XII and of determining the existence of a breach by Seller of any representation or warranty in under this Agreement and the amount of any Damages resulting from a breach of a representation or warranty under this Agreement, individually each representation and warranty in this Agreement will be read without regard and without giving effect to the term “material,” “Material Adverse Effect,” “Parent Material Adverse Effect” or in similar qualifications (except with respect to the aggregate with any other breaches of Seller’s representations and warranties in this Agreement, constitutes a Material Adverse Effect, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breach, under this Article IX or otherwise.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to Sections 4.4(b), 4.5(b), 4.7(a), 4.7(b)(iii), the extent applicablelast sentence of 4.8(b)(i), Seller’s indemnification obligation shall be limited to the cost third sentence of 4.8(b)(ii), 4.10(a), 4.10(b), 4.11(a) or the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controlslast sentence of 4.12(b) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligenceSections 5.5(a), gross negligence or willful misconduct of Buyer after the Closing Date5.5(b), to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs5.13(a) and 5.16)).
Appears in 1 contract
Samples: Merger Agreement (Cott Corp /Cn/)
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder under Section 9.2(a)(ii) or Section 9.2(b)(ii), as the case may be, only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival time period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1. Any claims pursuant to Section 9.2(a)(i) or Section 9.2(b)(i) must be asserted within eighteen (18) months following the Closing Date. Any claim for indemnification not made in accordance with Section 9.3 by a Party on or prior to the applicable date set forth in Section 9.1 or this Section 9.4(a), and the other Party’s indemnification obligations with respect thereto, will be irrevocably and unconditionally released and waived.
(b) Notwithstanding any other provision of this Article IX:
: (i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable Seller will not have any indemnification obligations for indemnification pursuant to Section Indemnifiable Losses under Sections 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(iand 9.2(a)(ii) hereof (A) for any individual item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or the Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (x) 50% amount of all such Indemnifiable Losses up to 2% exceeds the threshold of the Purchase Price and (y) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and one-half two percent (12.52%) of the Purchase Price.
, (iiibut once the aggregate amount of all such Losses exceeds such threshold, Buyer shall be entitled to indemnification for all such Losses including the amount of such threshold); and (ii) The in no event will the aggregate indemnification to be paid by Seller under Sections 9.2(a)(i) and 9.2(a)(ii) exceed fifteen percent (15%) of the Purchase Price. Notwithstanding the foregoing, (x) the limitations specified set forth in Section Sections 9.4(b)(i) and Section 9.4(b)(ii) shall will not apply to Indemnifiable Losses arising out claims asserted by Buyer for breaches of any breach of any of the representations and warranties in Section Sections 5.1, 5.2, 5.85.7, 5.135.3(a), 5.9, 5.15, 5.17, 6.15.18, 6.25.21 and 5.23 and (y) the aggregate indemnification to be paid by Seller under Section 9.2(a)(ii) with respect to breaches of Sections 5.1, or 6.55.2, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i5.7, 5.3(a), respectively5.9, in an aggregate amount in excess of 5.15, 5.17, 5.18, 5.21 and 5.23, will not exceed one hundred percent (100%) of the Purchase Price, less any other indemnification payments made by Seller pursuant to Sections 9.2(a)(i) and 9.2(a)(ii).
(c) Notwithstanding any other provision of this Article IX: (i) Buyer will not have any indemnification obligations for Indemnifiable Losses under Sections 9.2(b)(i) and 9.2(b)(ii) (A) for any individual item where the Loss relating thereto is less than $100,000 and (B) in respect of each individual item where the Loss relating thereto is EXECUTION COPY equal to or greater than $100,000, unless the aggregate amount of all such Losses exceeds two percent (2%) of the Purchase Price, (but once the aggregate amount of all such Losses exceeds such threshold, Seller shall be entitled to indemnification for all such Losses including the amount of such threshold); and (ii) in no event will the aggregate indemnification to be paid by Buyer under Sections 9.2(b)(i) and 9.2(b)(ii) exceed fifteen percent (15%) of the Purchase Price. Notwithstanding the foregoing, (x) the limitations set forth in Sections 9.4(c)(i) and 9.4(c)(ii) will not apply to claims asserted by Seller for breaches of Sections 6.1, 6.2, 6.3(a), 6.5, and 6.6, and (y) the aggregate indemnification to be paid by Buyer under Section 9.2(b)(ii) with respect to breaches of Sections 6.1, 6.2, 6.3(a), 6.5, and 6.6 will not exceed one hundred percent (100%) of the Purchase Price, less any other indemnification payments made by Buyer pursuant to Sections 9.2(b)(i) and 9.2(b)(ii). The foregoing limitations do not apply to Buyer’s obligation to deliver the full Purchase Price.
(d) No representation or warranty of either Party contained herein will be deemed untrue or incorrect, and such Party will not be deemed to have breached a representation, warranty, or covenant as a consequence of the existence of any fact, circumstance, action, or event that is permitted to be taken by such Party under the terms of this Agreement, or that is disclosed in this Agreement, any Schedule, or Exhibit hereto, or any certificate or other instrument delivered in accordance with the terms hereof.
(e) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedulesthis Agreement, neither Seller nor any other Person is making any other express or implied representation or warranty of any kind or nature whatsoever (including with respect to Seller, the Business, the Purchased Assets, the Assumed Obligations or the transactions contemplated by this Agreement), and Seller hereby disclaims any other representations or warranties, whether made by such Party Seller or its Affiliates, officers, directors, employees, agents, or representatives, including the implied warranty INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS. Any claims Buyer may have for breach of merchantability and any implied warranty of fitness for a particular purpose.
(d) In the event that Buyer proceeds to the Closing notwithstanding written notice from Seller prior to the Closing that any breach by Seller of any representation or warranty must be based solely on the representations and warranties of Seller set forth in this Agreement. In furtherance of the foregoing, except for the representations and warranties contained in this Agreement, individually Buyer acknowledges and agrees that none of Seller, any of its Affiliates, or any other Person will have or be subject to any liability to Buyer or any other Person for, and Seller hereby disclaims all liability and responsibility for, any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Buyer or any of Buyer’s Representatives, including any confidential memoranda distributed on behalf of Seller relating to the aggregate with Business, the Purchased Assets, or the Assumed Obligations or other publications or data room information provided to Buyer or Buyer’s Representatives, or any other breaches document or information in any form provided to Buyer or Buyer’s Representatives in connection with the sale of the Purchased Assets, the assumption of the Assumed Obligations, and the transactions contemplated hereby (including any opinion, information, projection, or advice that may have been or may be provided to Buyer or Buyer’s Representatives by any of Seller’s representations and warranties in this AgreementRepresentatives). BUYER HEREBY ACKNOWLEDGES THAT, constitutes a Material Adverse EffectEXCEPT EXECUTION COPY FOR THE WARRANTIES EXPRESSLY SET FORTH IN ARTICLE V, no Buyer Indemnitees shall have any claim or recourse against Seller or any of its Affiliates with respect to such breachTHE PURCHASED ASSETS ARE BEING PURCHASED ON AN “AS IS, under this Article IX or otherwiseWHERE IS” BASIS, WITH ALL FAULTS.
(e) In addition to the other limitations set forth in this Article IX, with respect to any claim for indemnification regarding any breach of any representation and warranty set forth in Section 5.12: (i) to the extent applicable, Seller’s indemnification obligation shall be limited to the cost of the least restrictive standard or remedy acceptable to each applicable Governmental Entity under applicable Environmental Law (including engineering or institutional controls) based on the industrial use of the relevant facility or property, proximity of commercial and residential areas, and all other relevant factors; provided, that the use of such standards or engineering or institutional controls does not materially interfere with operations at the affected facility and (ii) if any contamination at any Real Property that is subject to indemnity by Seller is exacerbated due to the negligence, gross negligence or willful misconduct of Buyer after the Closing Date, to the extent such exacerbation increases the cost of the investigation or remediation of such contamination, Seller shall not be responsible for any such increase in costs.
Appears in 1 contract
