Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply: (1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b). (2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages. (3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy. (b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply: (1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000. (2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages. (3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties (c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws. (d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Agreement Regarding Representations and Warranties (Ridgewood Power Growth Fund /Nj), Agreement Regarding Representations and Warranties (Ridgewood Electric Power Trust V)
Limitations on Liability. (a) With respect to any Claim Neither the Seller nor the Buyer is liable under this Article 9 unless and until the aggregate Losses for which indemnification they, respectively, would otherwise be liable under this Agreement exceed $50,000 (at which point the Seller or the Buyer, as applicable, is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in liable for the aggregate Losses and not just amounts in excess of the lesser of that sum); provided, however, that (isubject to Section 9.6(b)) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply maximum aggregate amount of all Losses for which the Seller is obligated to subsection 1(b).
(2) KEI and indemnify the Buyers on behalf of each of such KEI Buyer Indemnified Parties hereby waive any right pursuant to recover incidentalthis Article 9 shall not exceed Six Hundred Thousand ($600,000.00) Dollars (“Indemnification Cap”); provided, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit Indemnification Cap shall be reduced to $250,000 for by 25% at the duration end of each calendar year starting on the second anniversary of the Closing Date, unless there are outstanding claims for indemnification set forth which would exceed the original Indemnification Cap, in Section 1(b) hereof, and (ii) a letter of credit in which case the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyIndemnification Cap will not be reduced so long as such claims remain outstanding.
(b) With respect to any Claim asserted by any third Nothing in this Agreement will limit the Liability of a party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered other party for fraud or willful misconduct by such KEI Indemnified Parties, or (ii) $8,000,000party.
(2c) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive In no event will any right party which is a signatory to recover incidental, indirect, this Agreement be liable under this Agreement to any other party or other Person for special, exemplaryincidental, punitive or consequential damages.
damages (3including lost profits) Anything in connection with any claims, losses, damages or injuries arising out of the conduct of such party pursuant to the contrary contained in this Agreement notwithstandingregardless of whether the nonperforming party was advised of the possibility of such damages or not. The exclusion of special, KEI and incidental, punitive or consequential damages as set forth in the Buyers agree preceding sentence will not apply to any such damages recovered by third parties against a Buyer Indemnified Party or a Seller Indemnified Party, as the case may be, in connection with Losses that the KEI Indemnified Parties shall may be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible indemnified under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsthis Agreement.
(d) Each KEI This Article 9 shall be the sole and exclusive remedy of the Buyer Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise Parties and the Seller Indemnified Parties for monetary damages with respect to any Losses that are indemnifiable and all claims relating to this Agreement, any Ancillary Agreement (other than the Retention Agreements) or recoverable hereunder the transactions contemplated by this Agreement or in connection herewiththe Ancillary Agreements (other than the Retention Agreements).
Appears in 2 contracts
Samples: Foreclosure Sale Agreement, Foreclosure Sale Agreement (Isc8 Inc. /De)
Limitations on Liability. Notwithstanding any other provision of this Agreement:
(a) With respect Seller shall not have any liability pursuant to any Claim Section 8.2(a) unless and until the aggregate amount of all Losses incurred or suffered by the Purchaser Indemnified Parties for which they are entitled to indemnification is sought under pursuant to Section 1 8.2(a) exceeds 1% of this Agreementthe Purchase Price (the “Basket Amount”), but in the following provisions event such Losses exceed the Basket Amount, Seller shall apply:
(1) The KEI be liable and responsible to the Purchaser Indemnified Parties for the full amount of such Losses (subject to Section 8.4(b)), without reduction for the Basket Amount. Purchaser shall collectively be not have any liability pursuant to Section 8.3(a) unless and until the aggregate amount of all Losses incurred or suffered by the Seller Indemnified Parties for which they are entitled to pursue Claims and recover Losses as provided in indemnification pursuant to Section 1 of this Agreement8.3(a) exceeds the Basket Amount, but in the aggregate not in excess of event such Losses exceed the lesser of (i) Basket Amount, Purchaser shall be liable and responsible to the actual compensatory damages suffered by such KEI Seller Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and Parties for the Buyers on behalf of each full amount of such KEI Indemnified Parties hereby waive any right Losses (subject to recover incidentalSection 8.4(b)), indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 without reduction for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyBasket Amount.
(b) With respect to any Claim asserted Other than for liability under Section 8.9 and Article 9, in no event shall the aggregate liability of Seller for Losses incurred or suffered by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Purchaser Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess exceed 25% of the lesser of Purchase Price (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000“Indemnification Cap”).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided Other than liability under Section 8.9 or Article 9, or for breach of Purchaser’s obligations to make any payment pursuant to Section 2.2, in Section 3(a) and (b) above, KEI, no event shall the Buyers and aggregate liability of Purchaser for Losses incurred or suffered by the KEI Seller Indemnified Parties may not proceed against Ridgewood, exceed the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsIndemnification Cap.
(d) Each KEI The sole and exclusive liability and responsibility of Seller to the Purchaser Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder Parties under or in connection herewithwith this Agreement or the transactions contemplated hereby (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation) and the sole and exclusive remedy of the Purchaser Indemnified Parties with respect to any of the foregoing, shall be as set forth in Articles 8 and 9 and Section 11.16.
(e) The sole and exclusive liability and responsibility of Purchaser to the Seller Indemnified Parties under or in connection with this Agreement or the transactions contemplated hereby (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation) and the sole and exclusive remedy of the Seller Indemnified Parties with respect to any of the foregoing, shall be as set forth in Articles 8 and 9 and Section 11.16.
(f) In no event shall any party have any liability under this Agreement (including any Exhibit to this Agreement), any Transaction Document, agreement, certificate or other document delivered at either the RFS Closing or the RFCIL Closing, as applicable, or otherwise in connection with the transactions contemplated hereby or thereby for special, speculative, punitive, indirect or consequential damages or for lost profits.
Appears in 2 contracts
Samples: Membership Interest and Share Purchase Agreement, Membership Interest and Share Purchase Agreement (Residential Capital, LLC)
Limitations on Liability. (a) With respect The Liabilities of each Provider and its Affiliates and Representatives, collectively, under this Agreement for any act or failure to any Claim for which indemnification is sought under Section 1 act in connection herewith (including the performance or breach of this Agreement), or from the following provisions sale, delivery, provision or use of any Services provided under or contemplated by this Agreement, whether in contract, tort (including negligence and strict liability) or otherwise, at law or equity, shall apply:
not exceed the amount of Charges received (1and not previously paid back as a Liability hereunder) The KEI Indemnified Parties shall collectively be entitled by the Provider (or its Affiliates) prior to pursue Claims and recover Losses as provided in Section 1 the date on which the Provider’s (or its applicable Affiliate’s or Representative’s) action or inaction (or, prior to the one-year anniversary of this Agreement if such action or inaction occurs during the first year of this Agreement, ) giving rise to the Liability arises or occurs in the aggregate not in excess respect of the lesser Service for which the Liability arises hereunder; provided that, to the extent the liability arises out of (i) a Provider breaching this Services Agreement by not providing the actual compensatory damages suffered Services required hereunder, then the liability shall not exceed the greater of the fees previously paid to such Provider by such KEI Indemnified PartiesRecipient in respect of the Service from which such Liability flows or the amount that such Provider would have been paid by such Recipient for such Services for the agreed-upon term of such Services (or two years, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(bif shorter).
(2b) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything Notwithstanding anything to the contrary contained in this the Separation and Distribution Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of or this Agreement, the following provisions Provider shall apply:
not be liable to the Recipient or any of its Affiliates or Representatives, whether in contract, tort (1including negligence and strict liability) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreementor otherwise, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Partiesat law or equity, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive for any right to recover incidentalspecial, indirect, special, exemplaryincidental, punitive or consequential damages.
damages whatsoever (3including lost profits or damages calculated on multiples of earnings approaches), which in any way arise out of, relate to or are a consequence of, the performance or nonperformance by the Provider (including any Affiliates and Representatives of the Provider and any unaffiliated third-party providers, in each case, providing the applicable Services) Anything to the contrary contained in under this Agreement notwithstandingor the provision of, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled or failure to look solely to the R&W Insurance Policy provide, any Services under this Agreement, including with respect to loss of profits, business interruptions or claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warrantiescustomers.
(c) Except as expressly provided The limitations in Section 3(a7.01(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may shall not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware apply in respect of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder Liability arising out of or in connection herewithwith the gross negligence, willful misconduct, or fraud of or by the Party to be charged.
Appears in 2 contracts
Samples: Transition Services Agreement (Baxalta Inc), Transition Services Agreement (Baxalta Inc)
Limitations on Liability. Seller's liability under Section 10.3 is limited by all of the following:
(aA) With respect to Seller shall not be liable for any individual Claim or Warranty Claim for which indemnification is sought under Section 1 the amount of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively damages or other payment to which Buyer would otherwise be entitled to pursue Claims is less than One Hundred Thousand U.S. Dollars (US$100,000) (excluding interest, costs and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(bexpenses).
(2B) KEI Seller shall not be liable for any Claim or Warranty Claim unless the aggregate amount of Seller's liability in respect of all Claims and Warranty Claims made by Buyer (excluding any Warranty Claims excluded pursuant to Section 10.4(A)) under this Agreement and by Terminal Interests Buyer (excluding any Warranty Claims excluded pursuant to Section 10.4(A) of the Buyers on behalf Terminal Interests ASPA) under the Terminal Interests ASPA exceeds three and one-half percent (3.5%) of each the Consolidated Purchase Price, and then only to the extent of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damagesexcess.
(3C) Anything to Seller shall not have any liability for indemnification under Section 10.4(A) in excess of eight and one-half percent (8.5%) of the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit Consolidated Purchase Price in the amount aggregate.
(D) Seller shall not be liable in respect of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable other than with respect to the R&W Insurance Policy.
Retained Obligations) or Warranty Claim unless Notice is given by Buyer to Seller in writing, giving reasonably detailed information concerning the Claim or Warranty Claim within six (b6) With respect months after the Closing Date. The liability of Seller in relation to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, other than with respect to the amount Retained Obligations) or Warranty Claim pursuant to or in respect of this Agreement shall absolutely cease and terminate (if such Claim or Warranty Claim has not been previously satisfied, settled or withdrawn) six (6) months after the service of the Notice of such Claim or Warranty Claim given to Seller pursuant to Section 10.4(D), unless dispute resolution proceedings in accordance with Section 19 in respect of such Claim or Warranty Claim shall have been commenced in each case, within such six (6) month period. For this purpose, dispute resolution proceedings shall not be deemed to have been commenced unless they shall have been properly issued and validly served upon Seller. In respect of any deductible under liability which is contingent, Seller shall have no liability unless and until such insurance policyliability becomes an actual liability and is due and payable. This provision shall not operate to avoid a Claim or Warranty Claim made in respect of a contingent liability or not capable of being quantified within the time limits specified in this Section 10.4(D), provided that once the liability becomes actual or capable of being quantified, then Buyer shall be bound to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
commence legal proceedings, including arbitration, within the following three (c3) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsmonths.
(dE) Each KEI Indemnified Party shall use Commercially Reasonable Efforts Claims relating to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that Alleged Title Defects are indemnifiable or recoverable hereunder or addressed solely in connection herewithArticle 11.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement, Asset Sale and Purchase Agreement (Tesoro Logistics Lp)
Limitations on Liability. (ai) With respect to Notwithstanding any Claim for which indemnification is sought under Section 1 other provision of this Tolling Services Agreement and except as set forth in Section 19(e)(ii), to the extent permitted by applicable Law, neither Party shall be liable for punitive damages or special, indirect or incidental consequential damages or loss of profit or income arising out of breach of this Tolling Services Agreement, tort (including negligence) or any other theory of liability, and each Party hereby releases the following provisions other Party from any such liability.
(ii) The foregoing limitation on liability for special, indirect and incidental consequential damages or loss of profit or income shall applynot apply to or limit any right of recovery one Party may have against the other Party under applicable Law respecting the following:
(1A) The KEI Indemnified Parties shall collectively be Losses, damages, debts, obligations and liabilities (including defense costs) to the extent covered by the proceeds of insurance actually carried by or insuring the liable Party;
(B) Losses, damages, debts, obligations and liabilities arising out of fraud, criminal conduct, intentional misconduct, recklessness, bad faith or gross negligence;
(C) Developer’s obligation to pay compensation to TxDOT under this Tolling Services Agreement as set forth in Section 6; provided, however, that to the extent pursuant to applicable Law TxDOT is entitled to pursue Claims claim from Developer damages that result from an early termination (other than an early termination due to a default by TxDOT hereunder) and recover Losses as provided constitute a measure of future compensation, the aggregate amount of such damages, if any, that may be payable to TxDOT for such lost future compensation in Section 1 respect of the remaining period of the stated Term of this Tolling Services Agreement (without regard to such early termination hereof) following the date of any such termination hereof shall not exceed the TxDOT Prospective Compensation Damages Limit (and for the avoidance of doubt, it is acknowledged that such limitation applies only in respect of TxDOT’s prospective compensation that would be lost as a consequence of the early termination of this Tolling Services Agreement, in the aggregate and such limitation shall not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf limit any claims of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely TxDOT relating to (i) a letter any compensation accrued and owing to TxDOT under this Tolling Services Agreement as of credit in the amount date of $1,200,000 for recovery with respect to any Claim arising under Section 1 termination of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment Agreement by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, TxDOT due to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.default by Developer hereunder,
Appears in 2 contracts
Samples: Tolling Services Agreement, Tolling Services Agreement
Limitations on Liability. Notwithstanding any other provision of this Agreement:
(a) With respect Seller shall not have any liability pursuant to any Claim Section 8.2(a) unless and until the aggregate amount of all Losses incurred or suffered by the Purchaser Indemnified Parties for which they are entitled to indemnification is sought under pursuant to Section 1 8.2(a) exceeds 1% of this Agreementthe Purchase Price (the “Basket Amount”), but in the following provisions event such Losses exceed the Basket Amount, Seller shall apply:
(1) The KEI be liable and responsible to the Purchaser Indemnified Parties for the full amount of such Losses (subject to Section 8.4(b)), without reduction for the Basket Amount. Purchaser shall collectively be not have any liability pursuant to Section 8.3(a) unless and until the aggregate amount of all Losses incurred or suffered by the Seller Indemnified Parties for which they are entitled to pursue Claims and recover Losses as provided in indemnification pursuant to Section 1 of this Agreement8.3(a) exceeds the Basket Amount, but in the aggregate not in excess of event such Losses exceed the lesser of (i) Basket Amount, Purchaser shall be liable and responsible to the actual compensatory damages suffered by such KEI Seller Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and Parties for the Buyers on behalf of each full amount of such KEI Indemnified Parties hereby waive any right Losses (subject to recover incidentalSection 8.4(b)), indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 without reduction for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyBasket Amount.
(b) With respect to any Claim asserted Other than for liability under Section 8.9 and Article 9, in no event shall the aggregate liability of Seller for Losses incurred or suffered by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Purchaser Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess exceed 25% of the lesser of Purchase Price (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000“Indemnification Cap”).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided Other than liability under Section 8.9 or Article 9, or for breach of Purchaser’s obligations to make any payment pursuant to Section 2.2, in Section 3(a) and (b) above, KEI, no event shall the Buyers and aggregate liability of Purchaser for Losses incurred or suffered by the KEI Seller Indemnified Parties may not proceed against Ridgewood, exceed the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsIndemnification Cap.
(d) Each KEI The sole and exclusive liability and responsibility of Seller to the Purchaser Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder Parties under or in connection herewithwith this Agreement or the transactions contemplated hereby (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation) and the sole and exclusive remedy of the Purchaser Indemnified Parties with respect to any of the foregoing, shall be as set forth in Article 8, Article 9 and Section 11.17.
(e) The sole and exclusive liability and responsibility of Purchaser to the Seller Indemnified Parties under or in connection with this Agreement or the transactions contemplated hereby (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation) and the sole and exclusive remedy of the Seller Indemnified Parties with respect to any of the foregoing, shall be as set forth in Article 8, Article 9 and Section 11.17.
Appears in 2 contracts
Samples: Share Purchase Agreement (Residential Capital, LLC), Loan Agreement (Residential Capital, LLC)
Limitations on Liability. Seller's liability under Section 10.3 is limited by all of the following:
(aA) With respect to Seller shall not be liable for any individual Claim or Warranty Claim for which indemnification is sought under Section 1 the amount of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively damages or other payment to which Buyer would otherwise be entitled to pursue Claims is less than One Hundred Thousand U.S. Dollars (US$100,000) (excluding interest, costs and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(bexpenses).
(2B) KEI Seller shall not be liable for any Claim or Warranty Claim unless the aggregate amount of Seller's liability in respect of all Claims and Warranty Claims made by Buyer (excluding any Warranty Claims excluded pursuant to Section 10.4(A)) under this Agreement and by Pipeline Buyer (excluding any Warranty Claims excluded pursuant to Section 10.4(A) of the Buyers on behalf Pipeline ASPA) under the Pipeline ASPA exceeds three and one-half percent (3.5%) of each the Consolidated Purchase Price, and then only to the extent of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damagesexcess.
(3C) Anything to Seller shall not have any liability for indemnification under Section 10.4(A) in excess of eight and one-half percent (8.5%) of the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit Consolidated Purchase Price in the amount aggregate.
(D) Seller shall not be liable in respect of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable other than with respect to the R&W Insurance Policy.
Retained Obligations) or Warranty Claim unless Notice is given by Buyer to Seller in writing, giving reasonably detailed information concerning the Claim or Warranty Claim within six (b6) With respect months after the Closing Date. The liability of Seller in relation to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, other than with respect to the amount Retained Obligations) or Warranty Claim pursuant to or in respect of this Agreement shall absolutely cease and terminate (if such Claim or Warranty Claim has not been previously satisfied, settled or withdrawn) six (6) months after the service of the Notice of such Claim or Warranty Claim given to Seller pursuant to Section 10.4(D), unless dispute resolution proceedings in accordance with Section 19 in respect of such Claim or Warranty Claim shall have been commenced in each case, within such six (6) month period. For this purpose, dispute resolution proceedings shall not be deemed to have been commenced unless they shall have been properly issued and validly served upon Seller. In respect of any deductible under liability which is contingent, Seller shall have no liability unless and until such insurance policyliability becomes an actual liability and is due and payable. This provision shall not operate to avoid a Claim or Warranty Claim made in respect of a contingent liability or not capable of being quantified within the time limits specified in this Section 10.4(D), provided that once the liability becomes actual or capable of being quantified, then Buyer shall be bound to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
commence legal proceedings, including arbitration, within the following three (c3) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsmonths.
(dE) Each KEI Indemnified Party shall use Commercially Reasonable Efforts Claims relating to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that Alleged Title Defects are indemnifiable or recoverable hereunder or addressed solely in connection herewithArticle 11.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement, Asset Sale and Purchase Agreement (Tesoro Logistics Lp)
Limitations on Liability. Notwithstanding anything herein to the contrary:
(a) With The Stockholders shall not be liable under Section 7.2(a) (other than with respect to a breach of any Claim for which indemnification is sought under Section 1 Fundamental Representations) unless and until the Damages incurred by one or more of this Agreement, the following provisions shall apply:
(1) The KEI Buyer Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not have exceeded One Million Four Hundred Thirty Two Thousand Dollars ($1,432,000.00) (the “Deductible”), in excess which event the Stockholders shall be liable for only the amount of Damages that exceed the lesser Deductible. The aggregate amount of all Damages for which the Stockholders shall be liable pursuant to (i) Section 7.2 (other than Section 7.2(j)) shall not exceed the actual compensatory damages suffered by such KEI Indemnified PartiesIndemnification Escrow Amount, or except in the case of fraud and (ii) Section 7.2(j) shall not exceed the sum of the Sales and Use Tax Proceeding Indemnification Escrow Amount plus the Indemnification Escrow Amount. The aggregate amount of all Damages for which each Stockholder shall be liable pursuant to Section 7.2 in the case of fraud shall be limited to the portion of the Merger Consideration received by such Stockholder.
(b) Neither Parent nor Operator shall be liable under Section 7.3(a) or (b), as applicable, unless and until the Damages incurred by one or more of the Company Indemnified Parties in the aggregate have exceeded an amount equal to One Million Eight Hundred Fifty Thousand Dollars ($1,200,000; provided 1,850,000.00) (the “Buyer Deductible”), in which event Parent or Operator, as applicable, shall be required to pay or be liable for only the amount of Damages that no such liability limits apply exceed the Buyer Deductible. The aggregate amount of all Damages for which Parent and Operator shall be liable pursuant to subsection 1(bSection 7.3 shall be limited to One Million Eight Hundred Fifty Thousand Dollars ($1,850,000.00).
(2c) KEI and the Buyers on behalf of each of such KEI The Stockholders shall have no obligation under this Article 7 to indemnify any Buyer Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely Party with respect to (i) any Damage that is a letter Liability to the extent reflected in the final calculation of credit in the Closing Net Working Capital, (ii) any Damage to the extent such Damage does not exceed the amount of $1,200,000 any reserves for recovery such Damage as reflected in the final calculation of Closing Net Working Capital, (iii) any matter that was the subject of a dispute that was resolved pursuant to the terms of Section 1.17, (iv) any Liability that results from, or would not have arisen but for, the Restructuring Transactions (other than Liabilities arising out of, resulting from or in connection with any breach of any representation or warranty made by any of the Companies or Stockholder Representative in any Transaction Document) and (v) any Taxes that accrue or are attributable to the ownership of the Companies and the operation of the Business, on the Closing Date (determined in accordance with the methodology for allocating Taxes with respect to Straddle Periods).
(d) In calculating the amount of any Claim arising under Section 1 of this Agreement; provided that Damages payable to a Buyer Indemnified Party hereunder, (x) the parties agree that, upon the final, non-appealable resolution amount of the Accountant Claim, such letter Damages (i) shall not be duplicative of credit shall be reduced to $250,000 any other Damages for the duration of the which an indemnification set forth in Section 1(b) hereofclaim has been made, and (ii) a letter of credit in the amount of $100,000 for payment shall be reduced by KEI of the deductible payable any amounts actually recovered by such Buyer Indemnified Party or its Affiliates under any insurance policy with respect to such Damages, net of costs related to receiving such insurance payment, and (y) any inaccuracy in or breach of any representation or warranty and the R&W Insurance Policycalculation of Damages shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty. If the Stockholders pay a Buyer Indemnified Party for a claim (including through a disbursement from the Escrow Accounts) and subsequently insurance proceeds in respect of such claim are collected by the Buyer Indemnified Parties, then the Buyer Indemnified Party shall promptly remit the insurance proceeds up to the amount paid by the Stockholders in respect of such claim to Stockholder Representative.
(e) Notwithstanding anything herein to the contrary, Damages shall not include any punitive or special damages of any kind (except to the extent that such damages are actually awarded to or otherwise part of a settlement with a third party in connection with a Third-Party Claim).
(f) In no event shall the Stockholders have any obligation to indemnify or hold harmless any Buyer Indemnified Parties for any Damages to the extent any such Damages arise solely from or relate solely to a change in use or zoning of the Real Property after the Closing Date, except if and to the extent HoldCo had Knowledge of such change before the Closing Date.
(g) All claims for Damages made by any Buyer Indemnified Party under Section 7.2 (other than claims made by any Buyer Indemnified Party under Section 7.2(j)) shall be satisfied solely out of funds available in the Indemnification Escrow Account, subject to the terms of this Agreement and the Escrow Agreement, except in the case of fraud, in which case the Indemnification Escrow Account will be available as the primary source of recovery for Buyer Indemnified Parties for indemnification obligations of the Stockholders under Section 7.2 (other than Section 7.2(j)); provided, however, that, subject to Section 7.4(a), claims pursuant to Section 7.2(a)(i) shall be satisfied: (a) first, from the Indemnification Escrow Account; (b) With respect to any Claim asserted second, if the entire retention under the R&W Policy has been exhausted, by submission of claims by any third party as Buyer Indemnified Party pursuant to the matters R&W Policy until such time as the policy limit set forth in Section 2 the R&W Policy has been reached; and (c) in the case of fraud, against the Stockholders subject to the limits set forth in this Agreement, the following provisions shall apply:Article 7.
(1h) The KEI All claims for Damages made by any Buyer Indemnified Parties Party under Section 7.2(j) shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of satisfied (i) first, out of funds available in the actual compensatory damages suffered by such KEI Indemnified PartiesSales and Use Tax Proceeding Indemnification Escrow Account, or and (ii) $8,000,000if such claims for Damages exceed the Sales and Use Tax Proceeding Indemnification Escrow Account, from the Indemnification Escrow Account subject to the terms of this Agreement and the Escrow Agreement.
(2i) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any The right to recover incidentalindemnification pursuant to this Article 7 or any other remedy based on representations, indirectwarranties, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained covenants and agreements in this Agreement notwithstandingshall not be affected by any investigation conducted or knowledge acquired (or capable of being acquired) at any time, KEI and whether before or after the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, andClosing Date, with respect to the amount of accuracy or inaccuracy of, or compliance with, any deductible under such insurance policyrepresentation, to a letter of credit warranty, covenant or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsagreement.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
Limitations on Liability. Notwithstanding anything to the contrary in this Agreement or any right or remedy available under any Law:
(a) With An indemnified party shall have the right to payment by the indemnifying party under this Article VIII if and only if, and only to the extent that, such indemnified party shall have incurred, (i) as to any particular claim, an indemnifiable Loss in excess of TEN THOUSAND DOLLARS ($10,000) and (ii) as to all claims under this Article VIII, indemnifiable Losses in excess of ONE HUNDRED THOUSAND DOLLARS ($100,000) (the “Claims Threshold”) (in determining whether the Claims Threshold has been satisfied, only Losses exceeding the per claim threshold set forth in the foregoing clause (i) shall be included), in which case the indemnified party shall have a right to payment only to the extent of such excess. For the avoidance of doubt, RS&T shall not be entitled to aggregate for any purpose of this Section 8.04(a) any of the Losses for which UCC has no liability under this Agreement.
(b) No indemnifying party shall have any liability under or otherwise in connection with this Agreement or the transactions contemplated hereby in excess of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) in the aggregate.
(c) IN NO EVENT SHALL EITHER PARTY HERETO OR ANY OF ITS APPLICABLE AFFILIATES HAVE ANY LIABILITY UNDER THIS AGREEMENT FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, SPECULATIVE, INDIRECT, REMOTE OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOST PROFITS OR DAMAGES BASED UPON A MULTIPLE OF EARNINGS.
(d) From and after the Closing, the sole and exclusive liability and responsibility of the Parties hereto (and their respective applicable Affiliates) under or in connection with the Acquired Assets, this Agreement and the transactions contemplated by this Agreement (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason other than fraud), and the sole and exclusive remedy of such Persons with respect to any Claim for which indemnification is sought of the foregoing, shall be as set forth in this Article VIII and in Article V. For the avoidance of doubt, nothing in this Section 8.04 shall constitute a release or waiver of any claims or rights of any party under Section 1 of this any Related Agreement, the following provisions shall apply:.
(1e) The KEI Indemnified Parties shall collectively be entitled Notwithstanding anything to pursue Claims and recover Losses as provided in Section 1 of this Agreementthe contrary herein, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such limitations on liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth above shall not apply for any claim in Section 1(b) hereoffavor of an indemnified Person relating to fraud, gross negligence or willful misconduct, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect any obligation of UCC pursuant to this Agreement to cause or otherwise bring about any Claim asserted action by any third party of its Affiliates in the event that such action is not taken by the applicable Affiliate, RS&T shall not have any cause of action against such Affiliate of UCC other than as to the matters set forth specifically provided in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Asset Transfer Agreement, Asset Transfer Agreement (GlyEco, Inc.)
Limitations on Liability. Notwithstanding anything to the contrary herein:
(a) With respect Parent shall not be liable for any breach of any representation or warranty of Parent set forth in this Agreement attributable to a single course of conduct or related set of facts, events or circumstances unless the aggregate amount of Damages incurred by the Purchaser Indemnitees for such breach exceeds $125,000 (the “De Minimis Amount”); provided, however, that the limitations set forth in this Section 9.4(a) shall not apply to Damages arising out of or resulting from any Claim for which indemnification is sought under Section 1 breach of this Agreement, any Fundamental Representation (other than a breach of the following provisions shall apply:representations and warranties in Sections 4.11(b) through (d));
(1b) The KEI Indemnified Parties Parent shall collectively not be entitled liable for any breach of any representation or warranty of Parent set forth in this Agreement unless the aggregate amount of Damages incurred by the Purchaser Indemnitees for such breach and all other breaches otherwise subject to pursue Claims indemnification hereunder exceeds $20,000,000 (the “Deductible”), and recover Losses as provided then only to the extent such aggregate Damages exceed such amount; provided, however, that the limitations set forth in this Section 1 9.4(b) shall not apply to indemnification for Damages arising out of or resulting from any breach of any Fundamental Representation (other than a breach of the representations and warranties in Sections 4.11(b) through (d)) (and, for the avoidance of doubt, (A) Damages attributable to a single course of conduct or related set of facts, events or circumstances that do not exceed the De Minimis Amount pursuant to Section 9.4(a) shall not be counted towards the calculation of the Deductible, and (B) Damages indemnifiable and actually paid by Parent on account of any breach of any Fundamental Representation shall not be counted towards the calculation of the Deductible);
(c) in no event shall Parent’s aggregate Liability arising out of or relating to Section 9.2(a)(i) exceed $150,000,000 (the “Cap”); provided, however, that the Cap shall not apply to indemnification for Damages arising out of or resulting from any breach of any Fundamental Representation;
(d) notwithstanding anything to the contrary in this Agreement, in no event shall Parent’s aggregate Liability arising out of or relating to Section 9.2(a)(i), Section 9.2(a)(ii) or Section 10.1 exceed the Purchase Price; provided, however, that the limitations set forth in this Section 9.4(d) shall not apply with respect to any breach of the covenants set forth in Section 1.6;
(e) Parent shall not be liable for any Brazil Environmental Liabilities pursuant to Section 9.2(a)(iv) unless the aggregate not amount of Damages incurred by Purchaser Indemnitees for all Brazil Environmental Liabilities otherwise subject to indemnification under this Agreement exceeds $3,000,000 (the “Brazil Environmental Deductible”), and then only to the extent such aggregate Damages exceeds such amount, and in excess of no event shall Parent’s aggregate Liability for such Damages exceed $35,000,000 (the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b“Brazil Environmental Cap”).;
(2f) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties no Purchaser Indemnitee shall be entitled to look solely indemnification under Section 10.1 or this Article IX to (i) the extent a letter of credit Liability or reserve relating to the matter giving rise to such Damages has been included in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution calculation of the Accountant ClaimClosing Adjustment;
(g) each Indemnified Party shall, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect extent required by applicable Law, have a duty to use commercially reasonable efforts to mitigate any Claim asserted by any third party as Damages arising out of or relating to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and or the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses transactions contemplated hereby upon becoming aware of any event or circumstance that could would reasonably be expected to to, or does, give rise thereto;
(h) the amount of any Damages for which an Indemnified Party claims indemnification under this Agreement shall be reduced by the amount of (i) any insurance proceeds actually received (net of any deductibles) from third party insurers with respect to such Damages (provided that the amount of such insurance proceeds deemed to have been received will also be net of any increase in premium (and retro-premium adjustments) for such insurance policies to the extent arising out of or resulting from such Damages), (ii) any Tax Benefit that is actually realized in the year in which such Damages are incurred, which Tax Benefit is attributable to such Damages or to the facts giving rise to such Damages, and (iii) any indemnification, contribution, offset or reimbursement payments actually received from third parties with respect to such Damages; provided, that such Indemnified Party shall use its good faith efforts to obtain recoveries from insurers, including title insurers, and other third parties in respect of this Section 9.4(h). If an Indemnified Party (A) actually receives insurance proceeds from third party insurers with respect to such Damages or (B) actually receives indemnification, contribution, offset or reimbursement payments from third parties with respect to such Damages, in each case, at any time subsequent to any Losses indemnification payment pursuant to Section 10.1 or this Article IX and subject to the limitations in the preceding sentence, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to such amount actually received by such Indemnified Party;
(i) in the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article IX or Section 10.1, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification;
(j) notwithstanding anything provided under applicable Law, no Party shall have any Liability (including, without limitation, under Article X or this Article IX) for, and Damages shall not include, (A) any incidental, consequential, special or indirect Damages or Damages based on lost profits or loss in value, except to the extent any such Damages were reasonably foreseeable or (B) any punitive Damages or Damages that are indemnifiable or recoverable hereunder or based on a multiple of earnings, in connection herewitheach case of clauses (A) and (B), except to the extent any such Damages are awarded and paid with respect to a Third Party Claim as to which a Party is entitled to indemnification under this Agreement.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Newell Brands Inc)
Limitations on Liability. (a) With respect to any Claim The amounts for which indemnification is sought an indemnifying party shall be liable under Section 1 Sections 18A and 18B shall be net of this Agreement, any insurance proceeds received or to be received by the following provisions indemnified party in connection with the facts and circumstances giving rise to the right of indemnification. OCEAN SPRAY SHALL HAVE NO LIABILITY TO NORTHLAND OR ANY THIRD PARTY FOR DAMAGES OR LIABILITY OR INJURY TO A THIRD PARTY ARISING FROM THE MISUSE OR MISAPPLICATION OF THE CONCENTRATE OR FROM THE CONCENTRATE BEING INCORPORATED INTO ANOTHER PRODUCT UNLESS THE CONCENTRATE FAILED TO MEET ANY OCEAN SPRAY REPRESENTATIONS AND WARRANTIES HEREIN. The liability of any party shall apply:
(1) The KEI Indemnified Parties be limited such that the indemnified party shall collectively not be entitled to pursue Claims more than one recovery for any single loss, damage, cost, expense, liability, obligation or claim even though such may have resulted from the breach or inaccuracy of more than one of the representations, warranties, covenants or agreements made by the indemnifying party in this Agreement. If Northland has properly rejected Concentrate in accordance with Section 5.C. by reason of non-compliance with the specifications on Exhibit 3 or for non-compliance with the other terms, conditions and recover Losses as provided in Section 1 provisions of this AgreementAgreement within the applicable thirty (30) day period for rejection or for any damages, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Partiesdefects, shortages or (ii) $1,200,000; provided that no such liability limits apply failure to subsection 1(b).
(2) KEI and the Buyers meet specifications on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidentalExhibit 3, indirect, special, exemplary, punitive or consequential damages.
(3) Anything notwithstanding anything to the contrary contained herein, Northland’s sole and exclusive remedy (unless otherwise agreed to in this Agreement notwithstanding, KEI and writing by the Buyers agree that the KEI Indemnified Parties parties) for any properly rejected Concentrate or shortages shall be entitled replacement concentrate, which meets the specifications on Exhibit 3, which shall be shipped at Ocean Spray’s cost to look solely to Northland (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that Northland had previously paid the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, shipment costs associated with such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereofrejected Concentrate), and (ii) delivered in a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policyreasonable time.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Toll Processing Agreement, Toll Processing Agreement (Northland Cranberries Inc /Wi/)
Limitations on Liability. Notwithstanding any other provisions of this Agreement or any of the Transaction Documents to the contrary:
(a) With respect No Seller or Member shall have any liability for Section 8.1 Indemnified Claims to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of extent (i) insurance proceeds (including proceeds from title insurance) in respect of such claims are actually received by the Buyer Indemnitees, net of all actual compensatory damages suffered and reasonable expenses incurred by them in recovering such KEI Indemnified Partiesproceeds from the insurance carrier, or (ii) $1,200,000; provided that no the Buyer Indemnitees actually receive indemnification or recovery of damages from a third party for such liability limits apply to subsection 1(b).
(2) KEI and claims, net of all reasonable expenses incurred by them in recovering such indemnification or recovery of damages from the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policythird party.
(b) With respect to any Claim asserted All amounts paid by any third party or on behalf of Sellers or the Members as indemnification shall be treated as adjustments to the matters set forth in Section 2 of this AgreementPurchase Price, the following provisions shall apply:except as required by applicable Law.
(1c) The KEI Indemnified Parties parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 without limitation any rights or remedies they may have with respect to claims based upon fraud or actions that are intended to further the commission of a fraud, whether under this Agreement, at law or in equity.
(d) No Seller or Member will have any liability to any Buyer Indemnitee under Section 8.1(a) unless and until the aggregate not Buyer Indemnitees shall have incurred on a cumulative basis Losses exceeding Twenty-Five Thousand and 00/100 Dollars ($25,000.00) (the “Basket”), at which point Sellers and the Members shall be jointly and severally liable for all Losses incurred by the Buyer Indemnitees from the first dollar up to and in excess of the lesser amount of the Basket (such amount intended to be a threshold and not a deductible); provided, however, the Basket shall not apply to any Losses incurred or suffered by any of them arising out of or resulting from (i) any breach by any Seller of any Exempt Representations and Warranties or any SOL Representations and Warranties or (ii) claims based upon Sellers’ fraud, fraudulent actions or intentional misrepresentation.
(e) The Buyer will not have any liability to the actual compensatory damages Seller Indemnitees under Section 8.2 until the Seller Indemnitees shall have incurred on a cumulative basis Losses exceeding the Basket, at which point the Buyer shall be liable for all Losses incurred by the Seller Indemnitees in excess of the amount of the Basket; provided, however, the Basket shall not apply to any Losses incurred or suffered by such KEI Indemnified Partiesany of them arising out of or resulting from (i) any breach by Buyer of any Exempt Representation and Warranties or (ii) claims based upon Buyer’s fraud, fraudulent actions or intentional misrepresentation.
(f) The maximum aggregate liability of Sellers and the Members to the Buyer Indemnitees with respect to claims under Section 8.1(a) will be limited to an amount equal to Two Million Sixty Two Thousand Five Hundred and 00/100 Dollars ($2,062,500) (the “Cap”); provided, however, the Cap shall not apply to any Losses incurred or suffered by any of them and arising out of or resulting from (i) any breach by the Sellers of any Exempt Representations and Warranties or any SOL Representations and Warranties, or (ii) $8,000,000claims based upon fraud, fraudulent actions or intentional misrepresentation.
(2g) KEI and The maximum aggregate liability of the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything Buyer to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy Seller Indemnitees with respect to claims brought pursuant under Section 8.2(a) will be limited to Section 2 hereofCap; provided, andhowever, with respect such limitation shall not apply to any Losses incurred or suffered by any of them and arising out of or resulting from (i) any breach by the amount Buyer of any deductible under such insurance policy, to a letter of credit Exempt Representations and Warranties or bond in form reasonably satisfactory to KEI. Agreement Regarding any SOL Representations and Warranties
, or (cii) Except as expressly provided in Section 3(a) and (b) aboveclaims based upon fraud, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers fraudulent actions or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsintentional misrepresentation.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Asset Purchase Agreement (U-Swirl, Inc.), Asset Purchase Agreement (Rocky Mountain Chocolate Factory Inc)
Limitations on Liability. 21.1 The liability of the Vendor in respect of or arising out of any breach of the provisions of Clause 20 and/or the Warranties (athe liability of the Vendor being referred to herein as `Liability') With respect to shall be limited as set out in Clause 20 and in this Clause 21.
21.2 No Liability shall in any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims event arise unless and recover Losses as provided in Section 1 of this Agreement, in until the aggregate not amount of loss sustained in excess respect of any claims permitted to be made under this Clause 21.2 shall equal or exceed (pound)720,000 but once the lesser of (i) figure is exceeded the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Purchaser shall be entitled to look solely to (i) a letter recover the whole of credit in such amount and not just the excess. Thereafter, no liability shall arise unless the amount of $1,200,000 for recovery the loss sustained in respect of each individual claim shall equal or exceed (pound)5,000 in which event the liability shall be in respect of the whole amount and not merely the excess.
21.3 The aggregate Liability shall not exceed the Consideration (as adjusted by the net amount payable pursuant to the Completion Statement under Clause 7.1 and/or any reduction in accordance with Clauses 9 or 11.3).
21.4 No claim in respect of any Liability shall be brought by the Purchaser against the Vendor unless notice in writing of any such claim (specifying in reasonable detail the nature of the breach and so far as practicable the amount claimed in respect thereof) has been given to the Vendor by no later than the Final Claim Date.
21.5 Unless proceedings in respect thereof shall have been commenced against the Vendor and/or GTC, any claim which has been made or shall be made before the Final Claim arising Date shall if it has not been previously satisfied settled or withdrawn be deemed to have been withdrawn and shall become fully barred and unenforceable on the expiry of the period of six months commencing on the Final Claim Date. For this purpose, proceedings shall not be deemed to have been commenced unless they shall have been issued and served upon the Vendor or GTC or, as the case may be, the Vendor's or GTC's Solicitors.
21.6 The Purchaser shall reimburse to the Vendor any sum paid to the Purchaser by the Vendor in respect of any Liability which is subsequently recovered by or paid to the Purchaser from any third party together (if the Vendor shall not have already recovered back from the Purchaser the full amount paid by the Vendor) with any repayment supplement under Section 1 825 of this Agreement; ICTA or other interest (less any taxation thereon) in respect thereof.
21.7 No Liability shall arise and the Purchaser shall have no claim whatsoever against the Vendor in respect thereof:
21.7.1 if and to the extent that allowance, provision or reserve has been made in the Completion Statement in respect of the matter to which such claim relates or such matter was taken into account in computing the amount of any such allowance, provision or reserve;
21.7.2 if and to the extent that such claim would not have arisen but for any claim, election, surrender or disclaimer made or notice or consent given or any other thing done after Completion by the Purchaser or any person connected with the Purchaser or the failure or omission of the Purchaser or any person connected with the Purchaser to make any such claim, election, surrender or disclaimer or give such notice or consent or do any other thing under the provisions of any enactment or regulation relating to Taxation;
21.7.3 if and to the extent that the Purchaser has an indemnity for or will recover the loss or damage suffered by the Purchaser arising out of such breach or claim under the terms of any insurance policy of the Purchaser or from any third party provided that the parties agree that, upon Vendor shall indemnify the final, non-appealable resolution Purchaser for any costs incurred in connection with the Purchaser obtaining such indemnity or recovery (providing that such indemnity does not entail any greater liability or obligation of the Accountant Claim, Vendor than it would have incurred as a liability for breach of Warranty); or
21.7.4 if and to the extent that such letter claim relates to a claim or liability for Taxation and would not have arisen but for any winding up or cessation after Completion of credit the Business or any trade or business carried on by the Purchaser.
21.8 All amounts available for set-off or otherwise liable to be deducted pursuant to Clause 21.7 above shall not be reduced to $250,000 deducted for the duration purpose of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in determining the amount of $100,000 for payment by KEI loss sustained in connection with the de minimis limits referred to in Clause 21.2 above.
21.9 The Purchaser shall not be entitled to recover damages from the Vendor in respect of any Liability to the extent that the Purchaser has already received reimbursement or restitution in respect of the deductible payable with respect to the R&W Insurance Policysame Liability.
(b) With respect to 21.10 If any Claim asserted claim by any third party as comes to the matters set forth notice of the Purchaser by reason or in Section 2 consequence of this Agreement, which any Liability may arise the following provisions shall applyPurchaser shall:
21.10.1 as soon as reasonably practicable (1and if possible within such a period as will afford the Vendor reasonable opportunity to lodge a timely appeal against such claim) The KEI Indemnified Parties shall collectively be entitled give written notice thereof to pursue Claims and recover Losses as provided the Vendor; and
21.10.2 not make any admission of liability, agreement or compromise with any person body or authority in Section 2 of this Agreement, in relation thereto without the aggregate not in excess prior agreement of the lesser of Vendor (i) the actual compensatory damages suffered by such KEI Indemnified Parties, not to be unreasonably withheld or (ii) $8,000,000delayed).
(2) KEI 21.11 Provided that the Vendor acknowledges its obligation to indemnify the Purchaser in accordance with Clause 21.12, without prejudice to Clause 21.10 above and Clause 21.12 below, if the Buyers on behalf Purchaser considers that it will or may make a claim against the Vendor for any Liability, it shall as soon as practicable so notify the Vendor pursuant to Clause 21.4, and for a period of each of 60 days after such KEI Indemnified Parties hereby waive any right notification shall grant the Vendor the opportunity to recover incidental, indirect, special, exemplary, punitive take steps to remedy or consequential damagesavert such Liability.
21.12 The Purchaser shall take such action as the Vendor may reasonably request (3) Anything provided that such action would not harm or be to the contrary contained in this Agreement notwithstandingdetriment of the Business or any part thereof as carried on by the Purchaser after the Completion Date) to avoid, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereofdispute, andresist, with respect to the amount of appeal, compromise or defend or mitigate any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to claim which would give rise to any Losses Liability on the basis that are indemnifiable the Purchaser shall be indemnified by the Vendor as to all reasonable costs and expenses which it may reasonably incur by reason of such action.
21.13 In assessing any damage or other amounts recoverable hereunder in respect of any Liability there shall be taken into account the value of any immediate financial benefit obtained by the Purchaser in consequence of the event or breach giving rise thereto.
21.14 For the avoidance of doubt nothing in connection herewiththis Clause 21 shall in any way restrict or limit the general obligation at law of the Purchaser to mitigate any loss or damage which it may suffer in consequence of any Liability.
21.15 Any amount paid by the Vendor pursuant to the provisions of the Agreement in respect of a breach of any of the Warranties or other provisions of the Agreement shall be treated as a reduction in the Consideration paid by the Purchaser.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Kaneb Pipe Line Partners L P), Sale and Purchase Agreement (Kaneb Pipe Line Partners L P)
Limitations on Liability. Notwithstanding any other provisions of this Agreement or any of the Transaction Documents to the contrary:
(a) With respect No Seller shall have any liability for Section 8.1 Indemnified Claims to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of extent (i) insurance proceeds (including proceeds from title insurance) in respect of such claims are actually received by the Buyer Indemnitees, net of all actual compensatory damages suffered and reasonable expenses incurred by them in recovering such KEI Indemnified Partiesproceeds from the insurance carrier, or (ii) $1,200,000; provided that no the Buyer Indemnitees actually receive indemnification or recovery of damages from a third party for such liability limits apply to subsection 1(b).
(2) KEI and claims, net of all reasonable expenses incurred by them in recovering such indemnification or recovery of damages from the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policythird party.
(b) With respect to any Claim asserted All amounts paid by any third party or on behalf of the Sellers as indemnification shall be treated as adjustments to the matters set forth in Section 2 of this AgreementPurchase Price, the following provisions shall apply:except as required by applicable Law.
(1c) The KEI Indemnified Parties parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 without limitation any rights or remedies they may have with respect to claims based upon fraud or actions that are intended to further the commission of a fraud, whether under this Agreement, at law or in equity.
(d) No Seller will have any liability to any Buyer Indemnitee under Section 8.1(a) unless and until the aggregate not Buyer Indemnitees shall have incurred on a cumulative basis Losses exceeding Ten Thousand and 00/100 Dollars ($10,000.00) (the “Basket”), at which point the Sellers shall be jointly and severally liable for all Losses incurred by the Buyer Indemnitees from the first dollar up to and in excess of the lesser amount of the Basket (such amount intended to be a threshold and not a deductible); provided, however, the Basket shall not apply to any Losses incurred or suffered by any of them arising out of or resulting from (i) any breach by any Seller of any Exempt Representations and Warranties or any SOL Representations and Warranties or (ii) claims based upon Sellers’ fraud, fraudulent actions or intentional misrepresentation.
(e) The Buyer will not have any liability to the actual compensatory damages Seller Indemnitees under Section 8.2 until the Seller Indemnitees shall have incurred on a cumulative basis Losses exceeding the Basket, at which point the Buyer shall be liable for all Losses incurred by the Seller Indemnitees in excess of the amount of the Basket; provided, however, the Basket shall not apply to any Losses incurred or suffered by such KEI Indemnified Partiesany of them arising out of or resulting from (i) any breach by Buyer of any Exempt Representation and Warranties or (ii) claims based upon Buyer’s fraud, fraudulent actions or intentional misrepresentation.
(f) The maximum aggregate liability of the Sellers to the Buyer Indemnitees with respect to claims under Section 8.1(a) will be limited to an amount equal to Five Hundred Eighty-Seven Thousand Five Hundred and 00/100 Dollars ($587,500) (the “Cap”); provided, however, the Cap shall not apply to any Losses incurred or suffered by any of them and arising out of or resulting from (i) any breach by the Sellers of any Exempt Representations and Warranties or any SOL Representations and Warranties, or (ii) $8,000,000claims based upon fraud, fraudulent actions or intentional misrepresentation.
(2g) KEI and The maximum aggregate liability of the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything Buyer to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy Seller Indemnitees with respect to claims brought pursuant under Section 8.2(a) will be limited to Section 2 hereofCap; provided, andhowever, with respect such limitation shall not apply to any Losses incurred or suffered by any of them and arising out of or resulting from (i) any breach by the amount Buyer of any deductible under such insurance policy, to a letter of credit Exempt Representations and Warranties or bond in form reasonably satisfactory to KEI. Agreement Regarding any SOL Representations and Warranties
, or (cii) Except as expressly provided in Section 3(a) and (b) aboveclaims based upon fraud, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers fraudulent actions or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsintentional misrepresentation.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Asset Purchase Agreement (U-Swirl, Inc.), Asset Purchase Agreement (Rocky Mountain Chocolate Factory Inc)
Limitations on Liability. 15.6.1 After the Closing, except for an indemnity claim pursuant to Section 15.3(g) (which shall have no time limit) any assertion by any Buyer Indemnified Party that any Seller is liable (a) With respect to for the inaccuracy of any Claim representation or warranty, (b) for which indemnification is sought the breach of any covenant, (c) for indemnity under Section 1 the terms of this Agreement, the following provisions shall apply:
or (1d) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided otherwise in Section 1 of connection with this Agreement, must be made by Buyer in writing and must be given to Sellers on or before the aggregate not in excess second anniversary of the lesser of (i) Closing Date. The notice shall state the actual compensatory damages suffered by facts known to Buyer that give rise to such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply notice in sufficient detail to subsection 1(b)allow Sellers to evaluate the assertion.
15.6.2 Except for an indemnity claim pursuant to Section 15.3(g) (2) KEI and which shall have no deductible), none of the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Buyer Indemnified Parties shall be entitled to look solely assert any right to indemnification hereunder or to otherwise seek any damages or other remedies for or in connection with (i1) a letter the inaccuracy of credit any representations of any Seller contained in the amount of $1,200,000 for recovery this Agreement or in any other agreement, instrument, document or certificate executed or delivered in connection with respect to any Claim arising under Section 1 of this Agreement; provided that (2) the parties agree thatbreach of, upon the final, non-appealable resolution or failure to perform or satisfy any of the Accountant Claim, such letter covenants of credit shall be reduced to $250,000 for the duration of the indemnification any Seller set forth in Section 1(bthis Agreement or in any other agreement, instrument, document or certificate executed or delivered in connection with this Agreement; or (3) hereof, and (ii) a letter of credit any liabilities otherwise arising in the amount of $100,000 for payment by KEI of the deductible payable connection with or with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained transactions contemplated in this Agreement notwithstandinguntil the aggregate amount of the Liabilities for such misrepresentations and breaches actually suffered by Buyer exceeds one percent of the Purchase Price, KEI and then only to the Buyers agree that the KEI extent of such excess.
15.6.3 No Seller shall be required to indemnify any Buyer Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy or pay any other amount in connection with respect to claims brought pursuant to Section 2 hereof, and, or with respect to the transactions contemplated in this Agreement in any amount exceeding in the aggregate fifty percent of the Adjusted Purchase Price.
15.6.4 The amount of any deductible under such insurance policy, to a letter Liabilities for which any of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Buyer Indemnified Parties may not proceed against Ridgewood, or Seller Indemnified Parties is entitled to indemnification or other compensation under this Agreement or in connection with or with respect to the Sellers transactions contemplated in this Agreement shall be reduced by any corresponding (1) tax benefit created or their respective shareholders, directors, officers, managers, members, employees generated or agents other than on grounds constituting fraud (2) insurance proceeds realized or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewithbe realized by such party if a claim were properly pursued under the relevant insurance arrangements.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Resaca Exploitation, Inc.), Purchase and Sale Agreement (Resaca Exploitation, Inc.)
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything Notwithstanding anything to the contrary contained in this Agreement:
(i) no indemnification payments will be made by or on behalf of an Indemnifying Party in respect of any breaches of representations and warranties made by such party, as applicable, under this Agreement notwithstanding(other than with respect to Seller Fundamental Representations) until the aggregate amount of Losses for which such Indemnifying Party would (but for this clause) be liable thereunder exceeds 1% of the Initial Purchase Price, KEI in which event the Indemnifying Party will be liable for all Losses from the first dollar;
(ii) the aggregate total amount for which an Indemnifying Party will be liable to indemnify and hold harmless the Buyers agree that the KEI Indemnified Parties with respect to any breaches of representations and warranties made by the Indemnifying Party under this Agreement (other than with respect to Seller Fundamental Representations) will not exceed 10% of the Initial Purchase Price;
(iii) the aggregate total amount for which an Indemnifying Party will be liable to indemnify and hold harmless the Indemnified Parties under this Agreement will not exceed the Initial Purchase Price; and
(iv) any indemnity provided hereunder shall be so applied as to avoid any double counting and no Indemnified Party shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 obtain indemnification more than once for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policysame matter or Losses.
(b) With respect An Indemnified Party’s right to any Claim asserted by any third party as to indemnification or other remedies based upon the matters set forth in Section 2 of this Agreementrepresentations, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims warranties, covenants and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess agreement of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary Indemnifying Party contained in this Agreement notwithstanding, KEI and will not be affected or deemed waived by reason of the Buyers agree fact that the KEI Indemnified Parties Party, based solely upon its own investigation and without regard to any information provided by the Indemnifying Party, knew or should have known that any representation or warranty might be inaccurate or that the Indemnifying Party filed to comply with any agreement or covenant. The limitations on liability set forth in this Section 8.5 shall be entitled not apply to look solely to the R&W Insurance Policy Losses resulting from fraud with respect to claims brought pursuant to Section 2 hereof, and, any breach of any representation or warranty or willful breach with respect to the amount of any deductible under such insurance policycovenant, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except each case as expressly provided contained in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsthis Agreement.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Share Purchase Agreement (Ariad Pharmaceuticals Inc), Share Purchase Agreement (Ariad Pharmaceuticals Inc)
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained Nothing in this Agreement notwithstanding, KEI and will limit the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) Liability of a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect Party to the R&W Insurance Policyother party for fraud or willful misconduct by such Party.
(b) With respect to any Claim asserted by any third party as Notwithstanding anything in this Agreement to the matters set forth contrary, if any representation and warranty contained in Section 2 of this AgreementAgreement or in any certificate delivered pursuant to this Agreement is qualified by materiality, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively “Material Adverse Effect,” or any other similar qualification, such qualification will be entitled to pursue Claims ignored and recover Losses as provided deemed not included in Section 2 of this Agreement, in the aggregate not in excess of the lesser such representation and warranty for purposes of (i) the actual compensatory damages suffered by determining whether there has been a breach of or inaccuracy in such KEI Indemnified Parties, representation or warranty and (ii) $8,000,000calculating the amount of Losses resulting from, arising out of, or relating to such breach or inaccuracy for purposes of this Article 7.
(2c) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive In no event will any right party which is a signatory to recover incidental, indirect, this Agreement be liable under this Agreement to any other party or other Person for special, exemplaryincidental, punitive or consequential damages.
damages (3including lost profits) Anything in connection with any claims, losses, damages or injuries arising out of the conduct of such party pursuant to the contrary contained in this Agreement notwithstandingregardless of whether the nonperforming party was advised of the possibility of such damages or not. The exclusion of special, KEI and incidental, punitive or consequential damages as set forth in the Buyers agree preceding sentence will not apply to any such damages recovered by third parties against a Buyer Indemnified Party or a Seller Indemnified Party, as the case may be, in connection with Losses that the KEI Indemnified Parties shall may be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible indemnified under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsthis Agreement.
(d) Each KEI Except for fraud, adjustment payments pursuant to Section 2.9 and Section 2.10 and recovery against the Excess Consideration Note and the Holdback, this Article 7 shall be the sole and exclusive remedy of the Buyer Indemnified Parties and the Seller Indemnified Parties for monetary damages with respect to any and all claims relating to this Agreement, any Ancillary Agreement or the transactions contemplated by this Agreement or the Ancillary Agreements.
(e) The Buyer Indemnified Parties and the Seller Indemnified Parties shall not be entitled to indemnification under Section 7.3(c) or Section 7.2(a), respectively, unless the aggregate of the Indemnifying Party’s indemnification obligations under Section 7.3(c) or Section 7.2(a), as applicable, exceeds One Hundred Sixty Two Thousand Seven Hundred Fifty U.S. Dollars ($162,750) (the “Tipping Basket”), in which event the Indemnifying Party shall be required to pay to the Indemnified Party and be liable for all such Losses from the first dollar of such Losses. This Section 7.8(e) shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise not apply to any Losses that are indemnifiable breaches of the Fundamental Representations or recoverable hereunder to breaches or inaccuracies of the representations and warranties set forth in connection herewithand under Section 7.3(e).
(f) Except for fraud, the Buyer Indemnified Parties shall not be entitled to indemnification under:
(i) Section 7.3(b) for any amounts in excess of Three Hundred and Fifty Thousand Dollars ($350,000); and
(ii) Section 7.3(c) for any amounts in excess of Seven Hundred and Thirty-Five Thousand Dollars ($735,000).
(g) Except for fraud, no party can recover under this Article 7 an amount in excess of such portion of the Purchase Price actually received by CGI, including the amount of the Excess Consideration Note.
Appears in 2 contracts
Samples: Secured Creditor Asset Purchase Agreement (Cancer Genetics, Inc), Secured Creditor Asset Purchase Agreement (Interpace Diagnostics Group, Inc.)
Limitations on Liability. (a) With Payments by an Indemnitor pursuant to Section 8.2 in respect of any Losses shall be limited to the amount of any liability or damage that remains after deducting therefrom (i) any insurance proceeds actually received by the Indemnified Party on account of such Losses and (ii) any indemnity, contribution or other similar payment actually received by the Indemnified Party from any third Person in respect of any such Losses, in each case net of costs incurred in connection with any such recovery including increased premiums. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Claim Loss for which indemnification is sought under Section 1 of this Agreementany such Person has been indemnified hereunder and received payment therefor, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled then a refund equal to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate amount of such recovery payments received by the Indemnified Party (net of all costs of recovery including present value of increased premiums), but not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Partiesindemnity received, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything shall be promptly delivered to the contrary contained in this Agreement notwithstandingIndemnitor. Notwithstanding the foregoing, KEI and the Buyers agree that the KEI Indemnified Parties no party shall be entitled obligated to look solely to (i) make a letter of credit in the amount of $1,200,000 for recovery with respect to claim against insurance or any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policythird Person.
(b) With Subject to the second sentence of this clause (b), under no circumstances shall the Seller’s post-closing liability with respect to any Claim asserted indemnification obligation, including, but not limited to, any post-closing obligation that could arise by virtue of a material breach of Section 3.10 (Title to Receivables) exceed $150,000.00 (the “General Liability Cap”). In the event of a claim of underlying fraud related to Receivables or fraudulent misrepresentation in connection with the origination or acquisition by the Company or any third party of its Affiliates of Receivables, the Seller’s post-closing liability (including the Buyer’s costs and expenses such as reasonable legal fees and expenses), calculated separately and in addition to the matters set forth in Section 2 General Liability Cap, shall not exceed $750,000.00. For purposes of this AgreementSection 8.3(b) and for the avoidance of doubt, a claim of a material breach of Section 3.10 (Title to Receivables) or underlying fraud related to Receivables or fraudulent misrepresentation in connection with the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively origination or acquisition by the Company or any of its Affiliates of Receivables can only be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, made with respect to the amount Buyer’s or any of its Affiliates’ actual economic Losses that have occurred, which actual economic Losses shall be certified in writing by the Buyer’s audit firm or a certified public accounting firm reasonably acceptable to the Seller. The Buyer shall be responsible for all costs associated with this certification of actual economic Losses. The value of any deductible under such insurance policybona fide claims shall be calculated by using a discount rate of 5% for guaranteed payments and fully hedged life contingent payments, to a letter and 10.5% for any unhedged life contingent payments. Under no circumstances shall the Seller be liable for any liability that might arise for any reason whatsoever after the third anniversary of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation date of securities lawsthis Agreement.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Securities Purchase Agreement, Securities Purchase Agreement (Asta Funding Inc)
Limitations on Liability. (a) With Notwithstanding anything to the contrary contained herein, an Indemnifying Party shall not have any obligation under Section 6.02 unless and until (i) the Losses incurred by the XLLC Indemnified Parties or the Acuitas Indemnified Party, as the case may be, with respect to any Claim matter or series of related matters for which indemnification is sought to be provided under Section 1 6.02(a) or 6.02(b) as applicable, exceed $100,000, in which case the Indemnifying Party shall be liable for all Losses with respect to such matter or matters, including the first $100,000 (subject to all other applicable requirements and limitations herein).
(b) Notwithstanding anything to the contrary contained herein, (i) in no event shall the aggregate liability of an Indemnifying Party under Section 6.02 exceed $1,000,000 and (ii) in no event shall the aggregate liability of an Indemnifying Party under this Agreement exceed the proceeds actually received by such party pursuant to this Agreement, the following provisions shall apply:.
(1c) The KEI Each Indemnified Parties Party shall collectively use reasonable efforts to mitigate all Losses for which such Indemnified Party is or may be entitled to pursue Claims indemnification hereunder. If any Losses sustained by an Indemnified Party are covered by an insurance policy or an indemnification, contribution or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the applicable Indemnifying Party shall cause such Indemnified Party to use reasonable efforts to collect such insurance proceeds or indemnity, contribution or similar payments. If any Indemnified Party receives such insurance proceeds or indemnity, contribution or similar payments prior to being indemnified with respect to such Losses under this Article VI, the payment under this Article VI with respect to such Losses shall be reduced by the amount of such insurance proceeds or indemnity, contribution or similar payments, less reasonable attorney’s fees and recover Losses other reasonable out-of-pocket expenses incurred in connection with such recovery. If an Indemnified Party receives such insurance proceeds or indemnity, contribution or similar payments after any Indemnified Party is indemnified with respect to some or all of such Losses, XLLC or Acuitas, as provided in Section 1 of this Agreementthe case may be, in shall pay or shall cause such Indemnified Party to pay to Acuitas or XLLC, as the aggregate not in excess of case may be, the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each amount of such KEI Indemnified Parties hereby waive any right to recover incidentalinsurance proceeds or indemnity, indirectcontribution or similar payment, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained less reasonable attorney’s fees and other reasonable out-of-pocket expenses incurred in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for connection with such recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the aggregate amount of $100,000 for payment paid by KEI of the deductible payable Acuitas or XLLC to all applicable Indemnified Parties with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsLosses.
(d) Each KEI Indemnified Party Notwithstanding anything to the contrary set forth herein, in no event shall use Commercially Reasonable Efforts any party be entitled to mitigate all Losses upon becoming aware recover or make a claim for any amounts in respect of, and in no event shall “Losses” be deemed to include indirect, expectation, incidental, special or consequential damages, lost profits or revenues, business interruption, exemplary or punitive damages or diminution in value and, in particular and without limiting the generality of the foregoing, no “multiple of earnings” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewithLosses.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Acuitas Group Holdings, LLC), Purchase and Sale Agreement (Peizer Terren S)
Limitations on Liability. (ai) With respect to Notwithstanding any Claim for which indemnification is sought under Section 1 other provision of this Tolling Services Agreement and except as set forth in Section 19(e)(ii), to the extent permitted by applicable Law, neither Party shall be liable for punitive damages or special, indirect or incidental consequential damages or loss of profit or income arising out of breach of this Tolling Services Agreement, tort (including negligence) or any other theory of liability, and each Party hereby releases the following provisions other Party from any such liability.
(ii) The foregoing limitation on liability for special, indirect and incidental consequential damages or loss of profit or income shall applynot apply to or limit any right of recovery one Party may have against the other Party under applicable Law respecting the following:
(1A) The KEI Indemnified Parties shall collectively be Losses, damages, debts, obligations and liabilities (including defense costs) to the extent covered by the proceeds of insurance actually carried by or insuring the liable Party;
(B) Losses, damages, debts, obligations and liabilities arising out of fraud, criminal conduct, intentional misconduct, recklessness, bad faith or gross negligence;
(C) Developer’s obligation to pay compensation to TxDOT under this Tolling Services Agreement as set forth in Section 6; provided, however, that to the extent pursuant to applicable Law TxDOT is entitled to pursue Claims claim from Developer damages that result from an early termination (other than an early termination due to a default by TxDOT hereunder) and recover Losses as provided constitute a measure of future compensation, the aggregate amount of such damages, if any, that may be payable to TxDOT for such lost future compensation in Section 1 respect of the remaining period of the stated Term of this Tolling Services Agreement (without regard to such early termination hereof) following the date of any such termination hereof shall not exceed the TxDOT Prospective Compensation Damages Limit (and for the avoidance of doubt, it is acknowledged that such limitation applies only in respect of TxDOT’s prospective compensation that would be lost as a consequence of the early termination of this Tolling Services Agreement, in the aggregate and such limitation shall not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf limit any claims of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely TxDOT relating to (i) a letter any compensation accrued and owing to TxDOT under this Tolling Services Agreement as of credit in the amount date of $1,200,000 for recovery with respect to any Claim arising under Section 1 termination of this Agreement; provided that the parties agree thatAgreement by TxDOT due to a default by Developer hereunder, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter amounts owing to TXDOT in connection with any such termination in respect of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect TxDOT’s recoverable unamortized costs and expenses related to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Partiesits services hereunder), or (iiiii) $8,000,000.any Developer breach or failure to perform under the Agreement;
(2D) KEI Loss of Toll Revenues owing to Developer, attributable to a TxDOT breach or failure to perform;
(E) Damages that are owing by a Party under another agreement or contract pertaining to the Facility (including, without limitation, the Agreement) or the services under this Tolling Services Agreement and that are incurred due to the Buyers on behalf other Party’s breach of each this Tolling Services Agreement;
(F) Transition costs incurred by Developer or TxDOT upon its proper exercise of such KEI Indemnified Parties hereby waive any a right to recover incidental, indirect, special, exemplary, punitive or consequential damages.terminate this Tolling Services Agreement;
(3G) Anything In the event of Developer’s proper exercise of a right to terminate this Tolling Services Agreement, costs Developer incurs to procure, hire, transition to and compensate a replacement service provider for comparable services for the remainder of the term after termination, to the contrary contained in this Agreement notwithstandingextent the compensation exceeds that which would be owing to TxDOT for the remainder of the term, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely subject to the R&W Insurance Policy with respect limitation that damages related to claims brought pursuant any difference in level of compensation of the replacement service provider shall not exceed the Replacement Provider Compensation Damages Limit;
(H) Specific amounts either Party may owe or be obligated to Section 2 hereof, and, with respect reimburse to the amount other Party under the express provisions of this Tolling Services Agreement in respect of any deductible under such insurance policyperiod prior to termination;
(I) Interest, late charges, fees, transaction fees and charges, penalties and similar charges that this Tolling Services Agreement expressly states are due from one Party to the other Party; and
(J) Any credits, deductions or offsets that this Tolling Service Agreement expressly provides to a letter of credit or bond in form reasonably satisfactory Party against amounts owing to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsParty.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Tolling Services Agreement, Tolling Services Agreement
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything Notwithstanding anything herein to the contrary contained in this Agreement notwithstandingcontrary, KEI and the Buyers agree that the KEI Indemnified Parties no indemnified Person shall be entitled to look solely seek indemnification from a Party hereunder pursuant to Section 13.1 unless such indemnified Person notifies such Party in writing of such Losses and Liabilities within the twelve (i12) month period specified in Section 9.4. The Parties acknowledge and agree that such obligation to provide written notice within twelve (12) months from the Closing Date and in a letter manner specified under this Agreement is intended by the Parties as a limitation of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided liability that the parties agree that, upon the final, non-appealable resolution represents a fair and equitable allocation of the Accountant Claim, such letter risks and liabilities that each Party has agreed to assume in connection with the subject matter hereof and is not an agreement within the provision of credit shall be reduced to $250,000 for the duration subsection 7(2) of the indemnification set forth in Section 1(b) hereof, and Limitations Act (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyAlberta).
(b) With respect to any Claim asserted by any third party as Notwithstanding anything herein to the matters set forth in Section 2 of this Agreementcontrary, the indemnification obligations of the Vendor under this Agreement are subject to the following provisions shall applyrestrictions:
(1i) The KEI Indemnified Parties no individual Claim of an indemnified Person may be made against the Vendor for any Claim or Losses and Liabilities hereunder unless such Claim or Losses and Liabilities exceed an amount equal to Twenty Five Thousand Dollars ($25,000). Furthermore, the Vendor shall collectively be entitled not have any liability for any indemnification pursuant to pursue Claims this Agreement unless and recover Losses as provided in Section 2 of this Agreement, in until the aggregate not amount of the liability for all Claims or Losses and Liabilities to indemnified Persons hereunder exceeds Two Hundred Fifty Thousand Dollars ($250,000), at which point only those Losses and Liabilities in excess of such amount shall be recoverable from the lesser Vendor. For the avoidance of (i) doubt, the actual compensatory damages suffered adjustments to the Purchase Price pursuant to Section 4.1 and any payments in respect thereof shall not be limited by such KEI Indemnified Parties, or this Section 13.5; and
(ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right Vendor's indemnification obligations under this Agreement shall be limited to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything an aggregate maximum amount equal to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsPurchase Price.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement (Oilsands Quest Inc), Asset Purchase and Sale Agreement (Oilsands Quest Inc)
Limitations on Liability. (a) With respect to any Claim claims for which indemnification is sought under Section 1 6.3(a) and under Section 6.5 in respect of this Agreementthe Xxxxx Matter, the following provisions Binghamton Matter or the Lock Matter, the Purchaser shall apply:
(1) The KEI Indemnified Parties shall collectively not be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in indemnification therefor until the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered Shareholders’ indemnification obligations thereunder, determined without regard to this Section 6.8 or any indemnification obligation by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply Shareholders pursuant to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable 6.5 other than with respect to the R&W Insurance PolicyXxxxx Matter, Binghamton Matter or the Lock Matter, exceeds $1,000,000, and then only to the extent that such Losses exceed $1,000,000 (the “$1 Million Indemnity Deductible”). Notwithstanding the foregoing, the $1 Million Indemnity Deductible shall not apply to claims by Purchaser based on breaches of representations and warranties contained in Sections 2.11 (Employee Benefit Matters), 2.12 (Taxes) and Section 2A.5 (Title).
(b) With respect to any Claim asserted by any third party as claims for indemnification under Section 6.5 other than in connection with the Xxxxx Matter, Binghamton Matter or the Lock Matter, Purchaser shall not be entitled to indemnification until the aggregate of Shareholders’ indemnification obligations thereunder (other than in respect of the Xxxxx Matter, Binghamton Matter or the Lock Matter), determined without regard to this Section 6.8, exceed $2,000,000, and then only to the matters set forth extent that such Environmental Liabilities exceed $2,000,000; provided that Purchaser shall be entitled to only 50% of the indemnification otherwise available under Section 6.5 (other than in respect of the Xxxxx Matter, Binghamton Matter or the Lock Matter) to the extent the Environmental Liabilities exceed $2,000,000 up to $7,000,000; and provided, further, any such Environmental Liabilities exceeding $7,000,000 for which the Purchaser is entitled to indemnification under Section 2 6.5 shall be the sole obligation of the Shareholders.
(c) Notwithstanding anything to the contrary stated in this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess liability of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything Shareholders to the contrary contained in this Agreement notwithstanding, KEI Purchaser pursuant to Article VI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to any Working Capital Deficit due to the Purchaser under Section 1.5 (b) shall not exceed $20,000,000 (the “Liability Cap”) and the Purchaser’s sole recourse in respect of the Shareholders’ indemnification obligations hereunder shall be the funds held pursuant to the Escrow Agreement. For the avoidance of doubt, the Liability Cap shall not apply to the claims brought for indemnification by reason of the Shareholders’ failure to comply with its obligations under Section 4.9 (Exclusivity) or if this Agreement is terminated by Purchaser pursuant to Section 2 hereof, and, with respect to 7.1(d)(ii) (the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws“Cap Exceptions”).
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Actuant Corp), Stock Purchase Agreement (Actuant Corp)
Limitations on Liability. (a) With None of Sellers Indemnified Parties shall be entitled to recover from any Buyer for any Losses arising under this Agreement or in connection with or with respect to any Claim for which indemnification is sought under Section 1 of the transactions contemplated in this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not any amount in excess of the lesser of (i) the actual compensatory damages damages, court costs and reasonable attorneys fees, suffered by such KEI Sellers Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers Party. Sellers on behalf of each of such KEI Sellers Indemnified Parties hereby waive waives any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to , including lost revenues or profits, even if such damages are foreseeable or the contrary contained in this Agreement notwithstanding, KEI and the damaged Sellers Indemnified Party has advised Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, possibility of such letter damages and regardless of credit shall be reduced whether any such damages are deemed to $250,000 for result from the duration failure or inadequacy of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policyany exclusive or other remedy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI No Sellers Indemnified Parties shall collectively be Party entitled to pursue Claims and recover Losses as provided indemnification hereunder or otherwise to damages in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, connection with or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount transactions contemplated in this Agreement shall settle, compromise or take any other action with respect to any claim, demand, assertion of any deductible under liability or legal proceeding that could materially prejudice or otherwise materially adversely affect the ability of Buyers to defend or otherwise settle or compromise with respect to such insurance policyclaim, to a letter demand, assertion of credit liability or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warrantieslegal proceeding without the prior written consent of Buyers, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Each Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party entitled to indemnification hereunder or otherwise to reimbursement for Losses in connection with the transactions contemplated in this Agreement shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable identifiable or recoverable hereunder or in connection herewith. Purchase and Sale Agreement
(d) Neither Party shall have recourse whatsoever against any of the shareholders, trustees, directors, partners, members, managers, officers, employees or representatives of the other Parties (including for such purposes, the shareholders, trustees, directors, partners, members, managers, officers, employees, agents or representatives of any Affiliate of a Party). Without limiting the generality of the foregoing, Buyers, on behalf of themselves and their Affiliates, and Sellers, on behalf of themselves, their Affiliates and Sellers Indemnified Parties, each hereby fully and irrevocably waives any right, claim or entitlement whatsoever against such trustees, directors, partners, officers, members, managers, employees or representatives relating to any and all Losses suffered or incurred by any of them arising from, based upon, related to, or associated with this Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ridgewood Power Growth Fund /Nj), Purchase and Sale Agreement (Ridgewood Electric Power Trust Iv)
Limitations on Liability. Notwithstanding anything to the contrary herein:
(a) With respect to any Claim Other than a claim for which indemnification is sought arising out of or resulting from Fraud by the Person making the relevant representation and warranty, the maximum aggregate liability of Seller or Buyer for indemnification under Section 1 11.2(a) and (b) or Section 11.3(a) and (b), respectively, shall be an amount equal to the Purchase Price. Other than a claim for indemnification arising out of this Agreementor resulting from Fraud by the Person making the relevant representation and warranty, the following provisions there shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled no obligation to pursue Claims and recover Losses as provided in indemnify under Section 1 of this Agreement, in the aggregate not in excess 11.2 for any misrepresentation or breach of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI representations and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification warranties set forth in Section 1(b3.12(a) hereof, or (d) (Transferred Assets) or covenants and agreements set forth in Section 5.1 (iiConduct of Business Prior to the Closing) a letter of credit in unless and until the aggregate amount of all such Losses exceeds two million dollars ($100,000 for payment by KEI of 2,000,000), at which point the deductible payable with respect Seller shall, subject to the R&W Insurance Policyterms of this Article 11 (including the prior sentence), indemnify the Buyer Indemnified Parties for all such Losses in excess of such amount.
(b) With respect Each Indemnified Party will have a duty to use reasonable best efforts to mitigate any Claim asserted by any third party as Losses arising out of or relating to the matters set forth in Section 2 of this Agreement, which, in the following provisions case of the Buyer Indemnified Parties, shall apply:
(1) include using reasonable best efforts to pursue any and all rights or benefits under the RWI Policy. The KEI Buyer Indemnified Parties shall collectively be entitled seek to pursue Claims recover any and recover all Losses as provided in Section 2 of this Agreement(i) first, except in the aggregate not case of Fraud, pursuant to the RWI Policy in excess accordance with the terms thereof (including for Losses arising out of or resulting from a misrepresentation or breach of any of the lesser Seller’s representations and warranties herein regardless of whether such Losses may also constitute Excluded Liabilities) and (ii) second, solely to the extent such Losses are not recoverable under the RWI Policy, directly against Seller to the extent provided by, and subject to the limitations set forth in, this Article 11.
(c) The amount of any Losses for which an Indemnified Party claims indemnification under this Agreement will be reduced by the amount of (i) any insurance proceeds actually received from third party insurers with respect to such Losses (net of premium increases arising from or relating to the actual compensatory damages suffered by underlying claim and the costs of recovering such KEI proceeds); and (ii) any indemnification, contribution, offset or reimbursement payments actually received from third parties (net of any costs or expenses incurred in connection with receiving such amounts) with respect to such Losses; provided that such Indemnified PartiesParty will use reasonable best efforts to obtain recoveries from insurers, including title insurers, and other third party indemnities in respect of this Section 11.5(c), for Losses actually covered or indemnified under the terms thereof. If an Indemnified Party (A) actually receives insurance proceeds from third party insurers with respect to such Losses, or (iiB) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidentalactually receives indemnification, indirectcontribution, special, exemplary, punitive offset or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy reimbursement payments from third parties with respect to claims brought such Losses, in each case, at any time subsequent to any indemnification payment pursuant to Section 2 hereofthis Article 11, and, with respect then such Indemnified Party will promptly reimburse the applicable Indemnifying Party for any payment made to the Indemnified Party by such Indemnifying Party in connection with providing such indemnification up to such amount of any deductible under actually received by such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsParty.
(d) Each KEI In the event an Indemnified Party recovers Losses in respect of a claim of indemnification under this Article 11, no other Indemnified Party will be entitled to recover the same Losses in respect of such claim for indemnification. If Losses fall into multiple categories of Section 11.2 or Section 11.3, an Indemnified Party may seek recovery under such multiple categories but may only recover such Losses one time, and any Losses accounted for in the final Adjustment Amount or reimbursed under Section 6.2(a) shall not be recoverable pursuant to Section 11.2 or Section 11.3.
(e) Notwithstanding anything to the contrary set forth herein, no Buyer Indemnified Party shall use Commercially Reasonable Efforts have any right to mitigate all indemnification under this Agreement for any Losses upon becoming aware (i) that are or result from Taxes for any taxable period (or portion thereof) beginning after the Closing Date (where applicable, as determined in accordance with the principles of Section 6.2(a)), except to the extent such Taxes are Excluded Liabilities, result from a misrepresentation or breach of any event representation or circumstance warranty in Section 3.8(h), or result from any failure to perform any covenant or agreement of Seller contained in this Agreement, (ii) resulting from any breach by Buyer of this Agreement or (iii) for the amount, sufficiency or usability in any taxable period (or portion thereof) beginning after the Closing of any Tax basis or other Tax asset or other attribute with respect to the Transferred Assets, except to the extent that could reasonably be expected a misrepresentation or breach of any representation or warranty in Section 3.8(h) results in cash Taxes. Notwithstanding anything to give rise the contrary set forth herein, (x) no Seller Indemnified Parties shall have any right to indemnification under this Agreement for any Losses to the extent such Losses result from any breach by Seller of this Agreement and (y) no Seller Indemnified Party or Buyer Indemnified Party, as applicable, shall have any right to indemnification under this Agreement for any Losses that are indemnifiable Virginia Property Taxes.
(f) No Indemnified Party shall have any right to indemnification under this Agreement with respect to any environmental matter or recoverable hereunder condition that is discovered or detected by any sampling, investigation, or reporting by or on behalf of any Indemnified Party, in each case except to the extent such action is (i) required by Environmental Laws, (ii) reasonably necessary to defend against a Third Party claim, (iii) reasonably necessary consistent with industry practice in connection herewithwith any repair, maintenance, expansion or decommissioning activities or (iv) reasonably necessary to address an actual or suspected imminent threat to human health or the environment. Further, the Indemnifying Party’s indemnity obligation shall apply only to the extent any remedial actions taken are required by Environmental Laws and conducted in a cost effective manner assuming continuation of the current use of the subject property and employing risk based standards and institutional controls where available.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Shenandoah Telecommunications Co/Va/), Asset Purchase Agreement (T-Mobile US, Inc.)
Limitations on Liability. 6.1 The maximum aggregate liability of the Seller in respect of:
(a) With all claims under this Agreement in respect of the Tax Warranty (collectively, the Tax Warranty Claims) shall not exceed $26,500,000.00 (such amount being the Tax Amount); and
(b) all Claims shall not exceed the Consideration received by it.
6.2 The Seller shall not be liable in respect of:
(a) any claim in respect of the Tax Warranty or any Fundamental Warranty, unless written notice of such claim has been given to the Seller by or on behalf of the Buyer by no later than the date which falls three years after the Completion Date; and
(b) any other Claim, unless written notice of such Claim has been given to the Seller by or on behalf of the Buyer by no later than the date that is 12 months after the Completion Date.
6.3 Any Claim against the Seller will (if it has not previously been satisfied, settled or withdrawn) be deemed to have been withdrawn unless legal proceedings in respect of it have been commenced by being both issued and served within three months of notification of the Claim to the Seller.
6.4 None of the limitations contained in this Clause 6 will apply to any Claim if any liability of the Seller in respect of that Claim arises from, or is increased as a result of, fraud or fraudulent misrepresentation on the part of the Seller.
6.5 The rights and remedies of the Buyer under this Agreement with respect to the warranties and undertakings given in Schedule 3 shall not be affected by Completion and shall survive delivery of and payment for which indemnification is sought the C Depositary Receipts. The rights and remedies of the Seller under Section 1 this Agreement with respect to the warranties and undertakings given in Schedule 4 shall not be affected by Completion and shall survive delivery of and payment for the C Depositary Receipts.
6.6 For the purpose of this Agreementclause, Net Amount shall mean an amount in USD from time to time equal to the Tax Amount, less the aggregate amount in USD of payments made by the Seller to the Buyer in respect of any Tax Warranty Claim from time to time. For the period commencing on the Completion Date and ending on the date which is the third anniversary of the Completion Date (the Claim Deadline), the following provisions Seller shall apply:
retain an aggregate amount of cash and/or cash equivalents in USD equal to the Net Amount; provided that, if a bona-fide Tax Warranty Claim is formally commenced by the Buyer against the Seller prior to the Claim Deadline but has not been resolved, satisfied, settled or withdrawn prior to the Claim Deadline, the Seller shall solely with respect to such Tax Warranty Claim, continue to retain an aggregate amount of cash and/or cash equivalents in USD equal to the amount subject to such Tax Warranty Claim (provided such amount shall not exceed the Net Amount) until such Tax Warranty Claim is resolved, settled, satisfied or withdrawn. Notwithstanding the forgoing, the Seller may, at its discretion and at its sole cost and expense (including, without limitation, any and all premiums, broker commissions and related attorney fees and expenses), obtain an insurance policy, the terms of which shall be approved by the Buyer (which approval shall not be unreasonably withheld, denied or delayed) (the Insurance Policy). The Insurance Policy shall (1) The KEI Indemnified Parties shall collectively be entitled name (i) the Seller, (ii) the Buyer and (iii) such other persons or entities, being designees of the Buyer, as acceptable to pursue Claims and recover Losses as provided in Section 1 of this Agreementthe insurer(s), in each case as an insured party, (2) provide that, until the aggregate Claim Deadline, the Buyer and its designees shall have priority over the Seller in respect of any recovery under the Insurance Policy and that the Seller shall not have the right to receive any recovery unless and until all the claims made by the Buyer or its designees under the Insurance Policy prior to the Claim Deadline have been resolved, satisfied, settled or withdrawn, and (3) have a term that ends no earlier than the Claim Deadline. In the event that the Seller obtains the Insurance Policy, then, notwithstanding the forgoing, (a) the Net Amount (and therefore the amount of cash and/or cash equivalents required to be retained pursuant to this Clause 6.6) shall be reduced by the amount equal to the policy limit of the Insurance Policy less any deductible, retention, exclusion or other limitation that would be subtracted from or decrease the amount recoverable by the Buyer under the Insurance Policy, (b) the Buyer shall use reasonable best efforts to recover under the Insurance Policy in respect of any Tax Warranty Claim and in addition, to first recover any Tax Warranty Claim under the Insurance Policy, and (c) if the Buyer is unable to recover in full the relevant amount under the Insurance Policy, the Buyer’s right to assert a Tax Warranty Claim against the Seller shall not be affected or prejudiced by the availability of the Insurance Policy, except that the Seller shall be responsible only for the portion of any Tax Warranty Claim in excess of the lesser amount actually recovered by the Buyer under the Insurance Policy in respect of (i) such Tax Warranty Claim. If the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI Seller has made payment in respect of any Tax Warranty Claim and the Buyers on behalf of each Buyer subsequently recovers under the Insurance Policy in respect of such KEI Indemnified Parties hereby waive any right to recover incidentalclaim, indirect, special, exemplary, punitive or consequential damages.
(3) Anything the Buyer shall promptly refund to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of Seller the lesser of the amount recovered (inet of cost and applicable taxes, incurred in connection with such receipt) under the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI Insurance Policy and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damagesamount paid by the Seller.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 2 contracts
Samples: Agreement for the Sale and Purchase of Depositary Receipts (Goldman Sachs Group Inc), Agreement for the Sale and Purchase of Depositary Receipts (Canada Pension Plan Investment Board)
Limitations on Liability. (a) With respect Neither Seller Companies nor Purchaser shall in any event be liable to any Claim for which indemnification is sought under Section 1 of this Agreementeach other, the following provisions shall apply:
(1) The KEI Seller Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses Persons or Purchaser Indemnified Persons, as provided applicable, on account of any indemnity obligation set forth in Section 1 of this AgreementArticle XI for any indirect, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirectconsequential, special, exemplaryincidental or punitive damages, subject to the remainder of this provision. The Seller Companies and Purchaser acknowledge and agree that for purposes of this Article XI, any damages actually paid by either of them to a third party shall be considered direct damages rather than indirect, consequential, special, incidental or punitive or consequential damages.
(3) Anything . Further, notwithstanding the foregoing and anything to the contrary contained set forth herein, the parties acknowledge that the Purchase Price was calculated by multiplying 4 by the Seller’s Wholesale EBITDA, and if any breach of the representations and warranties of the Seller Companies in Article IV of this Agreement notwithstandingresults from or is caused by the actual Wholesale EBITDA having been lower than the Wholesale EBITDA set forth on the Adjusted Wholesale P&L Statement, KEI and the Buyers parties agree that the KEI Indemnified Parties difference shall constitute Losses hereunder, that all such Losses shall be entitled calculated by multiplying such difference by 4, and that the indemnified party shall be compensated for such Losses accordingly (subject to look solely to (i) a letter of credit in all the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 terms and conditions of this AgreementArticle XI); provided that the parties agree provided, that, upon the final, non-appealable resolution calculation of Losses to determine if the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party Seller’s Basket has been satisfied shall use Commercially Reasonable Efforts to mitigate the multiplier of 1 (with the understanding, however, that once the Seller’s Basket is satisfied, all Losses upon becoming aware of any event or circumstance that could reasonably will be expected to give rise paid on first-dollar basis, including but not limited to any Losses that are indemnifiable or recoverable hereunder or in connection herewithbased upon the multiplier of 4).
Appears in 1 contract
Limitations on Liability. (a) With Teledrift and the Stockholders will have no liability under Section 7.2(a) or under Section 7.2(b) to the extent Section 7.2(b) relates to pre-closing covenants until the aggregate amount of all Indemnified Amounts with respect to any Claim for which indemnification is sought under Section 1 of this Agreement, such matters exceeds $1,000,000 (the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement“Deductible”), in which case Teledrift and the aggregate not Stockholders shall be liable only for Indemnified Amounts in excess of the lesser Deductible. Any breach of (i) any representation or warranty of Teledrift or the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained Stockholders in this Agreement notwithstanding, KEI and the Buyers agree in connection with any single event or group of related events that the KEI results in Indemnified Parties Amounts of less than $10,000 shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 deemed, for recovery with respect to any Claim arising under Section 1 all purposes of this Agreement; provided that Article VII, not to be a breach of such representation or warranty and shall not be counted against the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyDeductible.
(b) With respect to any Claim asserted by any third party as to The maximum amount of Indemnified Amounts that the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively Purchaser will be entitled to pursue Claims recover from Teledrift and recover Losses as provided in the Stockholders pursuant to Section 2 of this Agreement, in 7.2(a) and pursuant to Section 7.2(b) to the aggregate not in excess extent Section 7.2(b) relates to pre-closing covenants shall equal 30% of the lesser Purchase Price (the “Cap”). Furthermore, the maximum amount of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree Amounts that the KEI Indemnified Parties Purchaser shall be entitled to look solely to recover from a Stockholder will not exceed such Stockholder’s Proportionate Ownership times the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and WarrantiesCap.
(c) Except as expressly provided in Notwithstanding anything herein to the contrary, neither the Deductible nor the Cap shall apply to any Indemnified Amounts arising from a breach of Section 3(a3.4(a), 3.9(a), 3.10(a) and (b) above, KEI, or 3.18 or any claim arising from actual fraud. The maximum amount of Liabilities that the Buyers Purchaser will be entitled to recover from Teledrift and the KEI Indemnified Parties may not proceed against RidgewoodStockholders pursuant to Section 7.2(a) with respect to breaches of Section 3.4(a), 3.9(a), 3.10(a) or 3.18 shall equal the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsPurchase Price.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware The amount of any event Indemnified Amounts for which Purchaser claims indemnification under this Agreement shall be reduced by: (i) any insurance proceeds paid to the indemnifying party with respect to such Indemnified Amounts; and (ii) indemnification or circumstance that could reasonably be expected reimbursement payments received by the indemnified party from third parties with respect to give rise such Indemnified Amounts.
(e) Notwithstanding any provision herein to the contrary, Teledrift and the Stockholders shall have no liability for any Losses that are indemnifiable breach of a representation or recoverable hereunder warranty in this Agreement by Teledrift or the Stockholders of which any of the Persons described in connection herewithSchedule 7.6(e) had actual knowledge of the existence of the breach on or prior to the date of this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Flotek Industries Inc/Cn/)
Limitations on Liability. (a) With The Sellers will not be liable in respect to of any Claim claim for which indemnification is sought under breach of the Warranties (other than the Warranties in Section 1 of this Agreement, the following provisions shall apply3.2) ("Claim") unless:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, amount of the individual Claim including any claim under Section 6.2(a) (or series of related Claims including any claims under Section 6.2(a) with respect to related facts or circumstances) exceeds $2,500; and
(ii) the aggregate amount of all such Claims exceeds $1,200,000; provided that no such liability limits apply to subsection 1(b).
70,000 (2) KEI and in which event the Buyers on behalf of each Sellers will be liable for the whole amount of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to Claims and not just the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of excess above $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy70,000).
(b) With Other than as expressly stated in this Article 7, the total aggregate amount of the liability of the Sellers in respect to of all Claims including any Claim asserted by any third party as claim under Section 6.2(a) will be limited to the matters set forth in Section 2 aggregate of this Agreementthe Initial Purchase Price, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims 1st Deferred Purchase Price, the 2nd Deferred Purchase Price and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,0003rd Deferred Purchase Price.
(2c) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties The Purchaser shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to set off the amount of any deductible under such insurance policy, to a letter substantiated claim against the 3rd Deferred Purchase Price. For the purpose of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
this Section 7.2 (c) Except as expressly provided in Section 3(a) and (b) above, KEI, a substantiated claim is one which a barrister of at least 10 years call agreed between the Buyers Buyer and the KEI Indemnified Parties may not proceed against Ridgewood, Sellers has provided an opinion in writing confirming that the Claim is more likely to succeed than not. No other right of set off shall apply. In the event that the Buyer and the Sellers cannot agree on the identity of such a barrister within a period of 14 days, then the either the Buyer or their respective shareholders, directors, officers, managers, members, employees the Sellers (or agents other than on grounds constituting fraud or violation all of securities lawsthem) shall be entitled to request that such a barrister be nominated by the President of the Bar Council of England and Wales.
(d) Each KEI Indemnified Party Except in the case of fraud or wilful non-disclosure on the Sellers’ part, the Sellers will be under no liability in respect of any Claim unless the Buyer has given to the Sellers written particulars of the breach:
(i) on or before two years after the Closing Date if the claim relates to any of the Warranties, other than the Tax Warranties set out in Section 3.10 and Article 6, inclusive;
(ii) on or before six years and six months after the Closing Date if the claim relates to any such Tax Warranties; and
(iii) proceedings have been issued and served against Sellers within twelve months of the Sellers receiving the written particulars referred to in section 7.2 (d) (i) and section 7.2 (d) (ii).
(e) The Sellers will have no liability in respect of any Claim (excluding a Tax Warranty claim) to the extent that:
(i) the liability arises or is increased as a result of the passing of any legislation or the making of any subordinate legislation, with retrospective effect; or
(ii) the liability is increased by any negligent act of the Buyer after the date of this Agreement.
(f) The liability of the Sellers for any such Claim (excluding a Tax Warranty claim) will be reduced or extinguished to the extent that the Company successfully claims under a policy of insurance held by the Company after Closing, where the terms of such policy are similar to a policy of insurance held by the Company before Closing. The Buyer will procure that the Company considers in good faith whether to claim under any such policy of insurance to seek to recover all such claims from the insurers.
(g) The Sellers will not be liable in respect of any Claim (excluding a Tax Warranty claim) to the extent that it is attributable to:
(i) any voluntary act, omission, transaction or arrangement carried out at the written request of the Buyer before the Closing Date;
(ii) any voluntary act, omission, transaction or arrangement carried out by the Sellers and/or the Company in accordance with a written request from the Buyer before the Closing Date
(h) If the liability of the Sellers or the Company in respect of any Claim is contingent only, the Sellers will not be under any obligation to make any payment in respect of the claim until the liability ceases to be contingent and the time limit set out in paragraph (c) above shall use Commercially Reasonable Efforts not apply until such contingent liability becomes an actual liability, references in paragraph (c) to the "Closing Date" being taken for the purposes of this paragraph (g) to be references to the date on which such contingent liability becomes an actual liability.
(i) The Warranties (excluding the Tax Warranties) are given subject to and are qualified by:
(i) any matters specifically referred to in this agreement and/or fairly and accurately disclosed in the Warrantors Disclosure Schedule (for the avoidance of doubt, "fair" disclosure meaning disclosure with sufficient detail to enable the Buyer to understand the nature, scope and, where applicable, the quantum of any liability relating to the matter disclosed).
(ii) any matters for which specific allowance or provision has been made in the Financial Statements and the Management Accounts save in respect of the Warranties contained in paragraph 3.6 of Article 3 (Financial Statements).
(iii) any matter which could be revealed by the Buyer making searches and enquiries of the local authorities, drainage and water suppliers and the coal authority in connection with the Properties (other than the property at 480 Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxx XX0X 0XX).
(j) Nothing in this section 7 will derogate from the Buyer’s common law obligation to mitigate all Losses upon becoming aware any loss which it suffers in consequence of a breach of any event term of this Agreement.
(k) In calculating the liability of the Sellers for any breach of the Warranties (excluding the Tax Warranties) there will be taken into account the amount by which any Tax for which the Company is now or circumstance that could reasonably will be expected to give liable, is reduced or extinguished as a result of the matter giving rise to such liability.
(l) The Sellers will not be liable in respect of any Losses that are indemnifiable Claim (excluding a Tax Warranty claim) if the breach would not have arisen but for:
(i) any change in the basis of, method of calculation of, or recoverable hereunder increase in the rates of Tax coming into effect after the date of this Agreement with retrospective effect;
(ii) any assessment of Tax arising as a result of a transaction in the ordinary course of business of the Company since the date of the Last Accounts;
(iii) the failure on the part of the Buyer or in connection herewiththe Company to make any claim, election, surrender or disclaimer or give notice or consent to do any other thing under the provisions of any Tax laws after the Closing Date; or
(iv) any winding up or cessation of any trade or business of the Company after the Closing Date.
Appears in 1 contract
Samples: Share Purchase Agreement (Nu Horizons Electronics Corp)
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 of this AgreementNotwithstanding the foregoing, the following provisions Sellers shall apply:
(1) The KEI Indemnified Parties shall collectively not be entitled obligated to pursue Claims indemnify and recover Losses as provided in Section 1 of this Agreementhold harmless any Buyer Indemnitee from Damages, in the aggregate not in excess of the lesser of (i) in the actual compensatory damages suffered by case of a claim for Damages under Section 8.2(a) arising from a breach of representations and warranties relating solely and exclusively to any of the Subsidiaries, unless and until the aggregate amount of such KEI Indemnified PartiesDamages exceeds $4,500,000, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).in the case of any other claim for Damages under Section
(2a) KEI for breach of any representation or warranty, unless and until the Buyers on behalf of each aggregate amount of such KEI Indemnified Parties hereby waive Damages exceeds $1,000,000 or (iii) in the case of any right claim for Damages under Section 8.2(e), unless and until the aggregate amount of such Damages exceeds $10,000. The Buyer shall not be obligated to recover incidentalindemnify and hold harmless any Seller Indemnitee from Damages with respect to one or more claims under Section 8.3(a) for any breach of any representation or warranty, unless and until the aggregate amount of such Damages exceeds $4,500,000. The aggregate indemnification liability of the Sellers or the Buyer for Damages (other than any Damages derived from or attributable to any Employee Benefit Plan other than an Assumed Plan, any Tax Item, any Excluded Liabilities and any Designated Employee Liability) under this Agreement shall not exceed twenty-five percent (25%) of the Purchase Price. The aggregate indemnification liability of the Sellers for Damages attributable to any Designated Employee Liability under this Agreement shall not exceed $75,000. Notwithstanding the foregoing, nothing contained in the Management Certificate shall act to qualify, limit, or reduce Seller's indemnification obligations pursuant to Section 8.2, except with respect to those representations qualified by Sellers' Knowledge. Notwithstanding anything to the contrary contained herein, Sellers shall not be obligated to indemnify and hold harmless any Buyer Indemnitee against indirect, special, exemplaryincidental, consequential or punitive or consequential damages.
(3) Anything , except to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to extent any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced foregoing constitute Damages payable to $250,000 for the duration of the indemnification set forth third parties by Buyer in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable connection with respect to the R&W Insurance Policyany third party claim.
(b) With Any indemnification payment made pursuant to this Agreement in respect to of any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of claim (i) shall be net of any insurance proceeds realized by and paid to the actual compensatory damages suffered by indemnified party in respect of such KEI Indemnified Parties, or claim; and (ii) $8,000,000.
(2) KEI shall be reduced by an amount equal to any tax benefits attributable to such claim, and increased by an amount equal to any taxes attributable to the Buyers on behalf of each receipt of such KEI Indemnified Parties hereby waive any right to recover incidentalpayment, indirect, special, exemplary, punitive or consequential damages.
(3) Anything but only to the contrary contained in this Agreement notwithstandingextent that such tax benefits are actually realized, KEI and or such taxes are actually paid, as the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereofcase may be, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, by the Sellers or their respective shareholdersby the Buyer or by any consolidated, directorscombined, officers, managers, members, employees or agents other than on grounds constituting fraud unitary group of which the Buyer or violation of securities laws.
(d) Each KEI Indemnified Party the Sellers are a member. The indemnified party shall use Commercially Reasonable Efforts its reasonable efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise make insurance claims relating to any Losses that are indemnifiable or recoverable hereunder or in connection herewithclaim for which it is seeking indemnification pursuant to this Section. Any indemnity payment under this Agreement shall be treated as an adjustment to the purchase price.
Appears in 1 contract
Limitations on Liability. (a) With respect to Notwithstanding any Claim for which indemnification is sought under Section 1 other provision of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising and all claims (whether or not by a third party pursuant to Section 6.3 and whether or not for breach or nonperformance of contract, negligence, indemnification, or any other theory of liability) in no event shall the Service Provider’s aggregate liability to the Service Recipient or the Service Recipient’s Indemnified Parties exceed the aggregate payments made to the Service Provider by the Service Recipient under Section 1 of this Agreement; provided Agreement except that the parties agree that, upon the final, non-appealable resolution this limitation shall not apply to liabilities caused solely by actions of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyService Provider constituting gross negligence or willful misconduct.
(b) With respect to Notwithstanding any Claim asserted by any third party as to the matters set forth in Section 2 other provision of this Agreement, and with respect to any and all claims (whether for breach or nonperformance of contract, negligence, indemnification, or any other theory of liability), neither the following provisions Service Provider nor the Service Recipient shall apply:
be liable to make any payment to the other in respect of any individual claim or series of related claims for losses in an amount which is less than $50,000 per claim or series of related claims unless and until the aggregate amount of such claims exceeds, in the aggregate, $200,000 (1) The KEI Indemnified Parties the “Deductible”), in which event the Party requesting payment shall collectively be entitled to pursue Claims recover all losses resulting from or arising out of such claims only to the extent the aggregate amount of such losses exceeds $200,000. However, claims for losses of more than $50,000 per claim or series of related claims shall not be subject to this limitation and recover Losses as provided in Section 2 shall not be counted toward satisfaction of the Deductible.
(c) Notwithstanding any other provision of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to any and all claims brought pursuant to Section 2 hereof(whether for breach or nonperformance of contract, andnegligence, with respect indemnification, or any other theory of liability), in no event shall any damages or losses payable under this Agreement include, and no Party shall be liable to the amount other Parties for, any punitive, incidental, consequential, indirect or special damages (including lost profits, lost revenues and loss of business), whether foreseeable or not, whether occasioned by any failure to perform or the breach of any deductible representation, warranty, covenant or other obligation under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. this Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsfor any cause whatsoever.
(d) Each KEI Indemnified Except as otherwise expressly provided herein, none of the remedies set forth in this Agreement is intended to be exclusive, and each Party shall use Commercially Reasonable Efforts to mitigate have all Losses upon becoming aware other remedies now or hereafter existing at law or in equity or by statute or otherwise, and the election of any event one or circumstance that could reasonably be expected more remedies shall not constitute a waiver of the right to give rise to any Losses that are indemnifiable pursue other available remedies.
(e) The provisions of this Section 6.5 shall survive expiration or recoverable hereunder or in connection herewithearlier termination of this Agreement.
Appears in 1 contract
Samples: Transition Services Agreement (Cloud Peak Energy Inc.)
Limitations on Liability. (a) With Unless otherwise expressly stated in this Agreement, the provisions of Sections
6.1 and 6.2 above provide each Party’s sole remedies for any failure by the other Party to perform its respective obligations under this Agreement prior to or at the Final Closing, but will not limit any rights or remedies that either Party may have for a breach or default by the other Party after Closing with respect to any Claim for which indemnification is sought under Section 1 those provisions of this Agreement, or those provisions of the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled Closing Documents, that are expressly stated to pursue Claims and recover Losses as provided in Section 1 of this Agreementsurvive Closing. However, in no event will either Party be liable to the aggregate not in excess of the lesser of (i) the actual compensatory other Party for any lost profits or consequential, indirect, special or punitive damages suffered by such KEI Indemnified Partiesa Party as a result of any failure, breach or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI default, either before or after Closing, by the other Party under this Agreement or any of the Closing Documents, and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive Party expressly waives any right to recover incidentalany lost profits or consequential, indirect, special, exemplary, special or punitive or consequential damages.
(3) Anything damages caused to such Party by the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policyother Party.
(b) With Notwithstanding anything to the contrary set forth in this Agreement or any of the Closing Documents, (i) Seller will have no liability whatsoever with respect to any Claim Claims suffered or incurred by, asserted by or assessed against, or imposed upon Buyer or any third party as Buyer Party under or with respect to this Agreement, the Property, or any Closing Document, except to the matters set forth extent (and only to the extent) that such Claims exceed $150,000.00 (the “Threshold Amount”); and (ii) in no event will the total aggregate liability of Seller and any Seller Parties for any or all Claims with respect to the entirety of the Property and the transactions contemplated by this Agreement and the Closing Documents, exceed $25,000,000.00 (the “Maximum Amount”). Buyer shall not make any Claims or deliver any Claim Notice unless Buyer in good faith believes the Claims would exceed the Threshold Amount, and Buyer shall not seek or receive for such Claims any remedies or awards that individually or in the aggregate, would exceed the Maximum Amount. The provisions of this Section 2 6.3(b) exclude any Claims by Buyer related to any express post-Closing obligations of Seller under Sections 3.6, 5.4, 5.6, 5.7 or 5.8 of this Agreement, for which Seller’s liability will not be limited by the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in Threshold Amount or the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000Maximum Amount.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cim Real Estate Finance Trust, Inc.)
Limitations on Liability. (a) With respect Nothing herein shall be construed to require the governing body of the Lessee to appropriate any Claim money to pay any Rentals hereunder. If the Lessee fails to pay any portion of the Rentals which are due hereunder or an Event of Default hereunder or an Event of Nonappropriation occurs, the Lessee shall immediately (but in no event earlier than the expiration of the Initial Term or the then current Renewal Term for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled Lessee has paid or appropriated moneys sufficient to pursue Claims and recover Losses as provided in Section 1 of this Agreementpay all Rentals due for such Renewal Term, in the aggregate not case of an Event of Nonappropriation) quit and vacate the Leased Property in excess of accordance with the lesser of (i) schedule therefor provided by the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything Lessee to the contrary contained Trustee in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery accordance with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b4.09(b) hereof, and its obligation to pay any Rentals (iiexcept for Rentals theretofore appropriated and then available for such purpose) a letter shall thereupon cease, it being understood between the parties that neither the State of credit in Utah nor any political subdivision thereof, except the amount of $100,000 for payment by KEI Lessee as provided herein, is obligated to pay any Rentals due to the Lessor hereunder. Should the Lessee fail to pay any portion of the deductible payable with respect required Rentals and then fail immediately to quit and vacate the Leased Property to the R&W Insurance Policyextent required, the Trustee in accordance with the Indenture may immediately bring legal action to evict the Lessee from the Project Site and commence proceedings to foreclose the lien of the Indenture pursuant to the Indenture. The Lessee hereby agrees to pay as damages for its failure immediately to quit and vacate the Leased Property upon termination of the Initial Term or the then current Renewal Term, as the case may be, of the Lease in violation of the terms hereof and Section 17D-2-405 of the Act an amount equal to the Base Rentals otherwise payable during such period prorated on a daily basis and any reasonable Additional Rentals attributable to such period on the basis of the services provided. No judgment may be entered against the State of Utah or any political subdivision of the State of Utah for failure to pay any Rentals hereunder, except to the extent that the Lessee has theretofore incurred liability to pay any such Rentals through its actual use, occupancy and operation of the Leased Property, or through its exercise of an option that renews the Lease for an additional Renewal Term for which moneys have been appropriated, or is otherwise obligated to pay such Rentals pursuant to this Lease.
(b) With respect The Rentals constitute current expenses of the Lessee, and the Lessee’s obligations hereunder are from year to year only and do not constitute a mandatory payment obligation of the Lessee in any Claim asserted by ensuing Fiscal Year beyond the then current Fiscal Year. No provision hereof shall be construed or interpreted as creating a general obligation or other indebtedness of the State of Utah or any third party as political subdivision of the State of Utah within the meaning of any constitutional or statutory debt limitation. Neither the execution, delivery and performance of the Lease nor the issuance of the Bonds directly or indirectly obligates the Lessee to make any payments hereunder beyond those appropriated for the Lessee’s then current Fiscal Year; provided, however, that nothing herein shall be construed to limit the rights of the Bondowners or the Trustee to receive any amounts which may be realized from the Trust Estate pursuant to the matters set forth in Section 2 Indenture. I No obligation assumed by or imposed upon the Lessor hereunder shall require the performance of this Agreementany act by the Lessor except to the extent, if any, that the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively cost and expense of such performance may be entitled to pursue Claims and recover Losses as provided in Section 2 for from the proceeds of this Agreement, in the aggregate not in excess sale of the lesser Bonds or paid by the Lessee hereunder as Additional Rental. Failure of (i) the actual compensatory damages suffered by Lessor to perform any such KEI Indemnified Parties, or (ii) $8,000,000act shall not entitle the Lessee to terminate the Lease.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Master Lease Agreement
Limitations on Liability. Except for the liabilities and obligations contemplated by Section 7.2(d), Section 7.2(e), Section 7.2(f), Section 7.2(i), Section 7.2(j), Section 7.3(e) and Section 7.3(f), the liability of the Sellers or the Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) With respect to any Claim for which indemnification is sought under Section 1 If the Closing shall not have occurred, recovery of this Agreementthe Buyer, Parent, the following provisions Sellers or the Companies pursuant to this Article 7 shall apply:
(1) The KEI Indemnified Parties be limited to actual out-of-pocket expense. In no event, whether prior to or after the Closing, shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this AgreementDamages include any punitive, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Partiesexemplary, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidentalspecial, indirect, special, exemplary, punitive incidental or consequential damages.
(3) Anything damages whatsoever except for any such damages owed to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policythird party.
(b) With The amount of Damages otherwise recoverable under this Article 7, and the amount of any claim which may be asserted for any purpose whatsoever hereunder, shall be reduced to the extent to which any Federal, state, local or foreign tax liabilities of Seller Indemnitee or Buyer Indemnitee, as applicable, is decreased by reason of any Damage in respect of which such Seller Indemnitee or Buyer Indemnitee, as applicable, shall be entitled to indemnity under this Agreement.
(c) No Damages shall be recoverable by a Seller Indemnitee or Buyer Indemnitee, and no claim therefor shall be asserted for any purpose whatsoever hereunder, with respect to any Claim asserted matter which is covered by any insurance, to the extent proceeds of such insurance or other third party as indemnitor are paid or payable.
(i) No Damages shall be recoverable by a Seller Indemnitee or Buyer Indemnitee pursuant to the matters provisions of this Article 7, and no claim therefor shall be asserted for any purpose whatsoever hereunder, with respect to any individual Damage unless the amount thereof equals at least Ten Thousand U.S. dollars ($10,000).
(ii) No Damages shall be recoverable by a Seller Indemnitee or Buyer Indemnitee pursuant to the provisions of this Article 7, and no claim therefor shall be asserted for any purpose whatsoever hereunder, unless the amount of Seller Indemnitees' or Buyer Indemnitees', as the case may be, Damages equals at least One Hundred Thousand U.S. dollars ($100,000) in the aggregate, whereupon an amount equal to the excess shall be recoverable by a Seller Indemnitee or Buyer Indemnitee in accordance with the terms hereof.
(iii) The aggregate amount of Damages recoverable pursuant to the provisions of this Article 7 by all Seller Indemnitees or Buyer Indemnitees, as the case may be, shall be limited to Twenty Five Percent (25%) of the Purchase Price in the aggregate.
(iv) Notwithstanding Sections 7.4(d)(i) and (ii) above, the Sellers shall indemnify the Buyer with respect to Damages relating to any Accounts Receivable of any of the Companies, to the extent such Damages, in the aggregate, exceed Ten Thousand U.S. dollars ($10,000).
(e) The Sellers shall indemnify the Buyer with respect to Damages relating to the E and O Coverage for up to a maximum of Ten Million U.S. dollars ($10,000,000). Payments under this Section 7.4(e) shall not be subject to, or count against, any of the limitations set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,0007.4(d).
(2f) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive No Damages shall be recoverable by any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything Buyer Indemnitee pursuant to the contrary contained provisions of this Article 7, and no claim therefor shall be asserted for any purpose whatsoever hereunder, which arise out of facts, circumstances or conditions which are disclosed in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of or any deductible under such insurance policy, to a letter of credit Schedule or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsExhibit hereto.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hub International LTD)
Limitations on Liability. (a) With respect Notwithstanding anything contained herein to any Claim for which indemnification is sought under Section 1 of the contrary, except as set forth in this Agreementsentence and the following sentence, the following provisions Company shall apply:
be obligated to indemnify the Buyer and its Indemnitees for Losses pursuant to Section 7.1(a) only if the aggregate amount of such Losses exceeds $15,000 (1the "Basket") The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreementprovided, that in the event that the aggregate not amount of such Losses exceeds such amount, the Company shall be obligated to indemnify the Buyer and its Indemnitees to the full extent of such Losses, provided, however, that in no event will the Company be obligated to pay any amounts to the Buyer in excess of the lesser Purchase Price (the "Cap"). Nothing contained herein shall in any way limit, or be deemed to limit, or otherwise affect the rights of the Buyer and its Indemnitees to indemnification under or with respect to, and the Basket and the Cap shall not apply to, (i) Losses arising from breaches of the actual compensatory damages suffered by such KEI Indemnified Partiesrepresentations and warranties of the Company in Sections 2.6, 2.16 and 2.21 or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI Losses for which the Buyer and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be its Indemnitees are entitled to look solely indemnification pursuant to (iSection 7.2(a) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, Environmental Liabilities and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyTax Liabilities.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Notwithstanding Section 2 of this Agreement7.1, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Buyer shall be entitled obligated to look solely to indemnify the R&W Insurance Policy with respect to claims brought Company for Losses pursuant to Section 2 hereof7.1(b) only if the aggregate amount of such Losses exceeds $15,000 (provided, andthat in the event that the aggregate amount of such Losses exceeds such amount, the Buyer shall be obligated to indemnify the Company to the full extent of such Losses). Nothing contained herein shall in any way limit, or be deemed to limit, or otherwise affect the rights of the Company to indemnification under or with respect to the amount of any deductible under such insurance policyto, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may Basket shall not proceed against Ridgewoodapply to, Losses for which the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsCompany is entitled to indemnification pursuant to Section 7.2(b).
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Liberty Group Publishing Inc)
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery Except with respect to any Claim arising under Section 1 claim based on a breach of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit any Fundamental Representation (as to which breaches there shall be reduced to $250,000 no Deductible), an indemnifying party shall have no liability (for the duration of the indemnification set forth in Section 1(bor otherwise) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to any matters described in Section 8.3(a) and Section 8.2(a), as applicable, until the R&W Insurance Policytotal amount of all Damages payable by the indemnifying party with respect to such matters exceeds Fifteen Thousand Dollars ($15,000) (the “Deductible”), and then only for the amount by which such Damages exceed the Deductible.
(b) With Except with respect to any Claim asserted by claim based on a breach of any third party Fundamental Representation (as to which breaches the matters set forth maximum amount of Damages that an indemnifying party shall be obligated to pay to the indemnified Persons under Section 8.2 or Section 8.3, as applicable, shall be limited to the total Purchase Price actually received by Seller in Section 2 of connection with this Agreement, whether with respect to the following provisions Buyer Shares or the Revenue Share) and except with respect to Article 9 (Noncompetition Obligations), the maximum amount of Damages that an indemnifying party shall apply:
be obligated to pay to the indemnified Persons under Section 8.2 or Section 8.3, as applicable, shall be limited to an amount equal to ten percent (110%) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided of total Purchase Price actually received by Seller in Section 2 of connection with this Agreement, in whether with respect to the aggregate not in excess Buyer Shares or the Revenue Share (the “Cap Amount”). Damages arising from a breach of any Fundamental Representation shall be excluded for purposes of calculating Damages applicable to the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000Cap Amount.
(2c) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought Payments by an indemnifying party pursuant to Section 2 hereof8.2 or Section 8.3, andas applicable, with in respect of any Damages shall be limited to the amount of any deductible liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by the indemnified Persons in respect of any such claim. The indemnified party shall use its commercially reasonable efforts to recover under such insurance policypolicies or indemnity, contribution or other similar agreements for any Damages prior to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsseeking indemnification under this Agreement.
(d) Each KEI Payments by an indemnifying party pursuant to Section 8.2 or Section 8.3, as applicable, in respect of any Damages shall be reduced by an amount equal to any Tax benefit realized or reasonably expected to be realized as a result of such Damages by the indemnified Persons.
(e) In no event shall an indemnifying party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue, profits or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(f) Each indemnified party shall use Commercially Reasonable Efforts take, and cause its Affiliates to take, all reasonable steps to mitigate all Losses any Damages upon becoming aware of any event or circumstance that could would be reasonably be expected to to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Damages.
(g) Seller shall not be liable under Section 8.2 for any Losses that are indemnifiable Damages based upon or recoverable hereunder arising out of any inaccuracy in or breach of any of the representations or warranties of Seller contained in connection herewiththis Agreement if Buyer had knowledge of such inaccuracy or breach prior to the Closing. Buyer shall not be liable under Section 8.3 for any Damages based upon or arising out of any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement if Seller had knowledge of such inaccuracy or breach prior to the Closing.
Appears in 1 contract
Limitations on Liability. (a) With respect The obligations of the Stockholders under this Section 8.1 shall be subject to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall applylimitations:
(1i) The KEI Stockholders shall not have any liability to any Parent Indemnified Parties Party with respect to Losses arising out of any of the matters referred to in Section 8.1(a), until such time as the amount of all such liability shall collectively exceed $50,000 (the “Threshold”), whereupon the Losses exceeding the Threshold shall be entitled payable by the Stockholders;
(ii) Xxxxxxx Xxxx shall not have any liability to pursue Claims and recover any Parent Indemnified Party with respect to Losses as provided arising out of any of the matters referred to in Section 1 8.1(b), until such time as the amount of this Agreementall such liability shall collectively exceed the Threshold, whereupon the Losses exceeding the Threshold shall be payable by Xxxxxxx Xxxx.
(iii) The maximum aggregate amount of Losses for which the Stockholders shall be liable pursuant to Sections 8.1(a) and 8.1(b), except for a breach of the representations and warranties contained in Sections 3.2 and 3.3 (collectively, the “Stock Representations”) and Section 3.7(i) (including any liability resulting from the New York S Corporation election for fiscal 2006 having been filed late), collectively, is one thousand dollars ($1,000), provided, however, that a Stockholder’s liability for Losses resulting from his own fraud (including fraud based on intentional or willful misstatement or omission), shall be limited to, in the aggregate not in excess case of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified PartiesXxxxxxx Xxxx, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, Merger Consideration actually received by such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this AgreementStockholder, in the aggregate not case of Xxxxxxx Xxxxxxx, $3,133,333, and in excess the case of the lesser of Xxxxxxx Xxxxxxx, $1,566,667 (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree it being understood that the KEI Indemnified Parties no Stockholder shall be entitled to look solely to the R&W Insurance Policy liable for fraud (including fraud based on intentional or willful misstatement or omission) of another Stockholder). The maximum aggregate amount of Losses for which a Stockholder shall be liable in connection with respect to claims brought pursuant to Section 2 hereof, and, with respect a breach of Stock Representation shall be equal to the amount of any deductible under Merger Consideration actually received by such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsbreaching Stockholder.
(div) Each KEI In no event shall the Stockholders’ aggregate liability to any Indemnified Party under Section 8.1 exceed the after tax amount of such Claim and all Claims shall be net of any insurance proceeds reasonably expected to be received in respect of Losses subject to such Claim. The Parent Indemnified Parties shall use Commercially Reasonable Efforts all reasonable efforts to mitigate all collect any amounts available under applicable insurance policies with respect to Losses upon becoming aware of any event or circumstance that could reasonably be expected subject to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewitha Claim.
Appears in 1 contract
Samples: Merger Agreement (Customer Acquisition Network Holdings, Inc.)
Limitations on Liability. The indemnification contemplated by Sections 9.1 and 9.2 will be subject to the following limitations and conditions:
(a) With The Parent Indemnified Parties will not be entitled to indemnification under Section 9.1(a) unless and until the aggregate Losses with respect to any Claim claims for which indemnification is sought under Section 1 of this Agreement9.1(a) exceed an amount equal to One Hundred Thousand Dollars ($100,000) (the “Deductible Amount”), at which point the following provisions shall apply:
(1) The KEI Parent Indemnified Parties shall collectively only be entitled to pursue Claims and recover indemnification under Section 9.1(a) for all Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of Deductible Amount; provided, however, the Deductible Amount will not be applicable with respect to (i) claims for indemnification for any inaccuracy in or breach of the actual compensatory damages suffered by such KEI Indemnified Parties, Company Fundamental Reps or (ii) $1,200,000; provided that claims for indemnification arising out of or based on Fraud. Furthermore, with respect to any claim for indemnity under Section 9.1(a) for which the Deductible Amount would apply, if the matter is also the basis for a claim for indemnity under any other provision of Section 9.1 for which the Deductible Amount would not apply, then the Deductible Amount will not be applicable to such claim. Except in the case of Fraud, no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Parent Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Party shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery receive any indemnification payments with respect to any Claim arising under Section 1 amount that exceeds the aggregate amount of this Agreement; provided that funds in the parties agree thatIndemnity Escrow Account from any Company Equityholder.
(b) Except in the case of Fraud, upon (i) any funds held in the final, non-appealable resolution Indemnity Escrow Account shall be the sole source of recovery of the Accountant Claim, such letter of credit Parent Indemnified Parties with respect to any claims for indemnification pursuant to this Article 9 and once all funds in the Indemnity Escrow Account have been distributed or otherwise exhausted the Parent Indemnified Parties shall not be reduced entitled to $250,000 indemnification from any Company Equityholder for the duration of the indemnification set forth in Section 1(b) hereofany claims thereafter, and (ii) a letter other than any claims which are to be satisfied out of credit funds in the amount of $100,000 for payment by KEI of Indemnity Escrow Account, the deductible payable Parent Indemnified Parties shall not assert claims directly against any Company Equityholder.
(c) The Equityholder Indemnified Parties will not be entitled to indemnification under Section 9.2(a) unless and until the aggregate Losses with respect to the R&W Insurance Policy.
(bclaims for indemnification under Section 9.2(a) With respect to any Claim asserted by any third party as exceed an amount equal to the matters set forth in Section 2 of this AgreementDeductible Amount, at which point the following provisions shall apply:
(1) The KEI Equityholder Indemnified Parties shall collectively only be entitled to pursue Claims and recover indemnification under Section 9.2(a) for all Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of Deductible Amount; provided, however, the Deductible Amount will not be applicable with respect to (i) claims for indemnification for any inaccuracy in or breach of the actual compensatory damages suffered by such KEI Indemnified Parties, Parent Fundamental Reps or (ii) $8,000,000.
(2) KEI and the Buyers claims for indemnification arising out of or based on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, andFraud. Furthermore, with respect to any claim for indemnity under Section 9.2(a) for which the amount Deductible Amount would apply, if the matter is also the basis for a claim for indemnity under any other provision of any deductible under Section 9.2 for which the Deductible Amount would not apply, then the Deductible Amount will not be applicable to such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsclaim.
(d) The Equityholder Indemnified Parties will not be entitled to indemnification under this Article 9 to the extent that the aggregate amount of all payments collectively received by the Parent Indemnified Parties in satisfaction of claims for indemnification pursuant to this Article 9 exceeds an amount equal to the Indemnity Escrow Amount; provided, however, the limitation set forth in this Section 9.6(d) will not apply to Losses arising out of or based on Fraud.
(e) For purposes of any indemnification claim made pursuant to Sections 9.1(a) or 9.2(a), any exception or qualification relating to “Material Adverse Effect” or other materiality qualification, limitation or exception included in such underlying representation or warranty or in the definition of any defined term used therein will be disregarded and not given effect (i) when determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) when determining the amount of Losses resulting from such alleged breach or inaccuracy.
(f) Each KEI indemnification obligation set forth in this Article 9 is non-exclusive of the other indemnification obligations in this Article 9 and will have separate and independent significance and meaning. With respect to any claim for indemnification under this Article 9 for which an Indemnification Period or other limitation would apply, if the matter is also the basis for a claim for indemnification under any other provision of this Article 9 for which such Indemnification Period or other limitation would not apply, then the Indemnified Party shall use Commercially Reasonable Efforts will be entitled to mitigate all Losses upon becoming aware of any event pursue indemnification under such other provision and such Indemnification Period or circumstance that could reasonably other limitation would not be expected applicable to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewithsuch claim.
Appears in 1 contract
Limitations on Liability. (a) With respect Notwithstanding anything to any Claim for which indemnification is sought under Section 1 of the contrary in this Agreement, except for any Losses resulting from the following provisions commission of fraud by the Seller in connection with the Transactions and the breach or inaccuracy of any of the representations and warranties set forth in Section 4.1 (Organization, Standing and Power) and Section 4.2 (Consents, Authorization and Enforceability), for which, in each case, the Buyer Indemnitees shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover all Losses as provided in their entirety, the aggregate amount of all Losses for which the Buyer Indemnitees are entitled to indemnification pursuant to Section 1 8.2(a) of this AgreementAgreement shall not exceed $4,000,000 in the aggregate, which limitation shall decrease to $2,000,000 in the aggregate following the twelve month (12) anniversary of the Closing Date (for the avoidance of doubt, and subject always to the overall limitation of $4,000,000 in the aggregate, recovery pursuant to aggregate claims for indemnification in excess of $2,000,000 that are pending at the twelve (12) month anniversary of the Closing Date, and that were properly submitted under this Article VIII prior to such date, shall not be deemed limited by the decrease in the limitation to $2,000,000 in the aggregate); provided that the Buyer Indemnitees shall not be entitled to recover for any Losses (other than for Losses resulting from or related to the commission of fraud by the Seller in connection with the Transactions) arising under this Agreement unless and until the aggregate amount of all Losses for which Buyer Indemnitees are otherwise entitled to indemnification pursuant to this Agreement exceeds an amount equal to $75,000 (the “Seller Basket”); provided that in the event that the Buyer Indemnitees are entitled to recover Losses under this Agreement in an aggregate amount in excess of the lesser of (i) Seller Basket, then the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Buyer Indemnitees shall be entitled to look solely to recover all such Losses (i) a letter of credit in including the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicySeller Basket).
(b) With respect to any Claim asserted by any third party as Notwithstanding anything to the matters contrary in this Agreement, except for any Losses resulting from the commission of fraud by the Buyer in connection with the Transactions and the breach or inaccuracy of any of the representations and warranties set forth in Section 2 of this Agreement5.1 (Organization, Standing and Authority) and Section 5.2 (Consents and Authorization), for which, in each case, the following provisions Seller Indemnitees shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims recover all Losses in their entirety, the aggregate amount of all Losses for which the Seller Indemnitees are entitled to indemnification pursuant to Section 8.2(b) of this Agreement shall not exceed $4,000,000; provided that the Seller Indemnitees shall not be entitled to recover for any Losses (other than for Losses resulting from or related to the commission of fraud by the Buyer in connection with the Transactions) arising under this Agreement unless and until the aggregate amount of all Losses for which Seller Indemnitees are otherwise entitled to indemnification pursuant to this Agreement exceeds an amount equal to $75,000 (the “Buyer Basket”) provided that in the event that the Seller Indemnitees are entitled to recover Losses as provided under this Agreement in Section 2 of this Agreement, in the an aggregate not amount in excess of the lesser of (i) Buyer Basket, then the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Seller Indemnitees shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to recover all such Losses (including the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsBuyer Basket).
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect Notwithstanding any other provision of this Agreement or of any applicable Law, no Person entitled to indemnity hereunder (each, an "Indemnitee") will be entitled to make a claim against a party required to provide indemnification under this Agreement (an "Indemnifying Party") for Indemnifiable Losses arising out of or relating to any Claim inaccuracy of representations or warranties under Sections 13.2(a)(i) or 13.2(b)(i) until the aggregate amount of Indemnifiable Losses exceeds an amount equal to $500,000 (the "Indemnification Threshold"). In the event and to the extent the aggregate amount of Indemnifiable Losses against an Indemnifying Party exceeds the Indemnification Threshold, such party shall be responsible for which indemnification is sought under Section 1 all Indemnifiable Losses from the first dollar of such Losses, but subject to the Indemnification Cap.
(b) Notwithstanding any other provision of this Agreement, the following provisions shall apply:
indemnification obligations of Sellers under Section 13.2(a)(i) or the indemnification obligation of Purchaser under Section 13.2(b)(i) will not exceed an amount equal to $15,000,000 (1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreementthe "Indemnification Cap"), in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b)respectively.
(2c) KEI The obligation of Sellers to indemnify under Section 13.2(a)(i) and the Buyers on behalf obligation of each of such KEI Indemnified Parties hereby waive any right Purchaser to recover incidentalindemnify under Section 13.2(b)(i) shall expire, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under representation or warranty of the respective party, on the date on which the survival of such representation or warranty shall expire in accordance with Section 1 of this Agreement13.1; provided that such representation or warranty shall survive the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable time it would otherwise terminate with respect to a specific claim if notice of the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as inaccuracy or breach thereof giving rise to the matters set forth in Section 2 right of this Agreement, the following provisions indemnification shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything have been given to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely Indemnifying Party prior to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under time such insurance policy, to a letter of credit representation or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawswarranty would otherwise terminate.
(d) Each KEI Indemnified No Indemnifying Party shall use Commercially Reasonable Efforts be liable to or obligated to indemnify any Indemnitee hereunder for any consequential, punitive or exemplary damages; provided, however, to the extent that an Indemnitee is seeking indemnification hereunder for any Third Party Claim (other than any Third Party Claim brought by any Third Party Purchaser), the Indemnifying Party shall only be liable for consequential, punitive or exemplary damages to the extent that the Third Party asserting such Third Party Claim seeks and recovers consequential, punitive or exemplary damages from the Indemnitee.
(e) The parties shall cooperate with each other with respect to resolving any claim or liability with respect to which one party is obligated to indemnify the other party hereunder, including by making commercially reasonable efforts to mitigate all or resolve any such claim or liability.
(f) Notwithstanding anything to the contrary herein, Purchaser's right to indemnification with respect to Indemnifiable Losses upon becoming aware relating to, resulting from or arising out of matters described in clause (i) of Section 13.2(a) shall be satisfied exclusively from the Indemnity Escrow Amount and Purchaser shall have no right of set-off against any amounts due to Sellers under this Agreement or any Ancillary Documents as a result of any event such Indemnifiable Losses. Purchaser acknowledges that its sole and exclusive remedy with respect to the matters described in clause (i) of Section 13.2(a) shall be pursuant to this Article XIII. Notwithstanding anything to the contrary herein, Purchaser may exercise a right of set-off as a result of any Indemnifiable Losses relating to, resulting from or circumstance that could reasonably arising out of matters described in clauses (ii) through (v) of Section 13.2(a); provided, however, Purchaser shall only be expected permitted to give rise exercise such right of set-off only to the extent Purchaser first seeks recourse against the Indemnity Escrow Amount and has exhausted such Indemnity Escrow Amount in full.
(g) Sellers shall have no obligation under Section 13.2(a) to indemnify any Indemnitee for Indemnifiable Losses that are indemnifiable relating to, resulting from or recoverable hereunder arising out of Excluded Liabilities to the extent (and only to the extent) the Indemnitee takes any identifiable action which directly causes the Excluded Liabilities to be a Liability of Purchaser. Moreover, Seller shall have no obligation under Section 13.2(a) for up to $500,000 in aggregate reasonable costs and expenses of the Indemnitee of defending a Third Party Claim or in connection herewithof otherwise resolving a Third Party Claim and the Indemnifiable Losses associated therewith, relating to, resulting from or arising out of Excluded Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fleming Companies Inc /Ok/)
Limitations on Liability. (a) With respect For any claims of the Indemnified Parties under Sections 4.2(a)(i) and 4.2(b)(i), as applicable, subject to any Claim for which Section 4.3(b), the Party from whom indemnification is sought under Section 1 (the “Indemnifying Party”) shall not be liable (i) for any individual occurrence, event, circumstance, act or omission where the Loss relating thereto, arising out of this Agreementor resulting therefrom, is less than US$50,000 (the following provisions shall apply:
“Threshold Amount”), (ii) for any Losses unless the aggregate amount of all Losses (excluding any Losses less than the Threshold Amount) of the applicable Indemnified Parties exceeds one percent (1%) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreementthe Total Issued Share Value (the “Aggregate Basket Amount”), in which case the aggregate not Indemnifying Party shall only be liable for such Losses in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereofAggregate Basket Amount, and (iiiii) a letter for Losses in excess of credit in the amount of $100,000 for payment by KEI five percent (5%) of the deductible payable with respect to Total Issued Share Value (the R&W Insurance Policy“Indemnity Cap”).
(b) With respect to For any Claim asserted by claims of the Indemnified Parties under Sections 4.2(a)(ii) or 4.2(b) (ii), as applicable, or any third party as to claims for indemnification resulting from or arising out of any breach of the matters set forth in Section 2 of this AgreementFundamental Representations, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 aggregate amount of this Agreement, in the aggregate not in excess liability of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in Indemnifying Party under this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled limited to look solely to one-hundred percent (100%) of the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and WarrantiesTotal Issued Share Value.
(c) Except as expressly provided No Party shall be liable under this Article IV for any Losses based upon or arising out of any in Section 3(aaccuracy in or breach of any of the representations or warranties it makes under this Agreement if the other Party (or an Affiliate thereof) and (b) above, KEI, had knowledge of such inaccuracy or breach prior to the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsClosing.
(d) Each KEI In calculating the amount of any Losses payable to an Indemnified Party hereunder, the amount of the Losses (i) shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware not be duplicative of any event other Loss for which an indemnification claim has been made, (ii) shall be computed net of any amounts actually recovered by such Indemnified Party (the “Third Party Indemnification Amount”) under any other indemnification agreements, understanding or circumstance that could reasonably similar arrangements other than this Agreement with respect to such Losses (net of any costs and expenses incurred in obtaining such recovery), and (iii) shall be expected computed net of any amounts actually recovered by such Indemnified Party under any insurance policy with respect to give rise such Losses (net of any costs and expenses incurred in obtaining such insurance proceeds). If the Indemnifying Party pays an Indemnified Party for a claim and subsequently insurance proceeds or the Third Party Indemnification Amount, as the case may be, in respect of such claim is collected by such Indemnified Party, then such Indemnified Party promptly shall remit the insurance proceeds (net of any costs and expenses incurred in obtaining such insurance proceeds) or the Third Party Indemnification Amount, as the case may be, up to any Losses that are indemnifiable or recoverable hereunder or in connection herewiththe amount paid by the Indemnifying Party to such Indemnified Party. For the purpose of this Section 4.3(d), from and after the Closing, MKC and its subsidiaries shall be deemed to be Company Indemnified Parties.
Appears in 1 contract
Samples: Share Purchase Agreement (SunEdison Semiconductor Pte. Ltd.)
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 of this AgreementNotwithstanding the foregoing, the following provisions Seller shall apply:
not be obligated to indemnify and hold harmless any Buyer Indemnitee from Damages under clause (1a) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in of Section 1 of this Agreement, in the aggregate 7.3 (which are not in excess of the lesser of also Damages under clauses (b) through (i) of Section 7.3) unless and until the actual compensatory damages suffered by aggregate amount of such KEI Indemnified PartiesDamages exceeds $200,000, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf Buyer shall not be obligated to indemnify and hold harmless any Seller Indemnitee from Damages under clause (a) of each Section 7.4 (which are not also Damages under clauses (b) through (d) of Section 7.4) unless and until the aggregate amount of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
Damages exceeds $200,000. The aggregate indemnification liability of the Seller for Damages under clause (3a) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to of Section 7.3 (which are not also Damages under clauses (b) through (i) a letter of credit in Section 7.3) shall not exceed the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyPurchase Price.
(b) With Any indemnification payment made pursuant to this Agreement in respect to of any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of claim (i) shall be net of any insurance proceeds realized by and paid to the actual compensatory damages suffered by indemnified party in respect of such KEI Indemnified Parties, or claim; and (ii) $8,000,000.
(2) KEI shall be reduced by an amount equal to any tax benefits attributable to such claim, and increased by an amount equal to any taxes attributable to the Buyers on behalf of each receipt of such KEI Indemnified Parties hereby waive any right to recover incidentalpayment, indirect, special, exemplary, punitive or consequential damages.
(3) Anything but only to the contrary contained in extent that such tax benefits are actually realized, or such taxes are actually paid, as the case may be, by the Seller or by the Buyer or by any consolidated, combined, or unitary group of which the Buyer or the Seller is a member. The indemnified party shall use its reasonable efforts to make insurance claims relating to any claim for which it is seeking indemnification pursuant to this Section. Any indemnity payment under this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely treated as an adjustment to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawspurchase price.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. The liability of the Seller for ------------------------ indemnification hereunder shall be limited to the sum of (a) With respect to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
$14,883,690 plus (1b) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect the Earn-Out Payment, if any, actually paid to any Claim arising under Section 1 RM pursuant to the Stock Purchase Agreement, less (c) the Post-Closing Reduction, if any, actually paid (in the form of this AgreementRetained Inventory and/or cash) to the Buyer (collectively, the "Indemnification Amount"); provided that the parties agree thataggregate amount -------- for which the Seller shall be obligated to indemnify the Buyer hereunder, upon and for which RM shall be obligated to indemnify the finalBuyer under the Stock Purchase Agreement, non-appealable resolution shall not exceed the Indemnification Amount. Notwithstanding the foregoing provisions, however, the Seller will have indemnification liability under this Agreement only if the aggregate amount of Losses suffered by the Buyer under this Agreement and under the Stock Purchase Agreement exceeds an amount equal to $350,000 (the "Indemnity Threshold"); provided, that after the -------- aggregate amount of Losses suffered by the Buyer exceeds the Indemnity Threshold, all Losses suffered by the Buyer (including those included in reaching the Indemnity Threshold) shall be subject to the Seller's indemnification obligations. The liability of the Accountant Claim, such letter of credit Buyer to the Seller for indemnification shall be reduced limited to $250,000 for the duration Indemnification Amount. The liability of the Buyer to the Seller for indemnification shall be limited to the Indemnification Amount; provided that the aggregate amount for which the Buyer -------- shall be obligated to indemnify the Seller hereunder, and for which the Buyer shall be obligated to indemnify RM under the Stock Purchase Agreement, shall not exceed the Indemnification Amount. The indemnification obligations of the parties set forth in Section 1(b) hereof, and (ii) a letter of credit in this Article 8 shall be the amount of $100,000 for payment by KEI exclusive remedy of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy parties with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount for a breach of any deductible under such insurance policy, to a letter of credit representations or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable warranties hereunder or in connection herewiththe failure to perform obligations required to be performed hereunder.
Appears in 1 contract
Limitations on Liability. (a) With Neither Parent nor Buyer shall have any obligation to indemnify any Buyer Indemnified Party or any Seller Indemnified Party, respectively, pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, unless and until the aggregate of all Losses suffered or incurred by all Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, which would otherwise be subject to indemnification hereunder exceeds $1,000,000 (the “Deductible”) at which times such Buyer Indemnified Parties or Seller Indemnified Parties shall be entitled to be indemnified against all Losses in excess of such Deductible amount in accordance with the terms hereof; provided, however, that the Deductible shall not apply to any Excluded Claims.
(b) Neither Parent nor Buyer shall have any obligation to indemnify any Buyer Indemnified Party or Seller Indemnified Party, as applicable, pursuant to Section 9.2(a)(i) or 9.2(b)(i), respectively, for aggregate Losses exceeding $20,000,000 (the “Cap”); provided, however, that the Cap shall not apply to any Excluded Claims.
(c) Parent shall have no obligation to indemnify any Buyer Indemnified Party, pursuant to Section 9.2(a)(i) with respect to any Buyer Warranty Claim relating to Section 3.22 (Environmental Matters) for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
aggregate Losses exceeding forty percent (140%) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of Final Working Capital (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(bas determined in accordance with Section 1.6).
(2d) KEI Subject to the limitations contained in this Section 9.3, to the extent any Buyer Indemnified Party incurs any indemnifiable Losses under Section 9.2(a)(i), such Losses shall be satisfied first from funds contained in the Indemnity Escrow Account and thereafter from Parent. Notwithstanding anything to the Buyers on behalf contrary in this Agreement, Buyer and Parent acknowledge and agree that Four Million, Two Hundred Ninety-One Thousand, Eight Hundred Forty Dollars ($4,291,840) of each the funds deposited into the Indemnity Escrow Amount were deposited in connection with the Sprint Receivable referenced in Exhibit D and shall be released to Parent by joint written instructions of the parties to the Escrow Agent upon payment in full to Buyer of such KEI Indemnified Parties hereby waive any right amount, whether by payment of the Sprint Receivable directly or by payment from Parent out of insurance recoveries as set forth in Section 9.3(f) below. If such payment in full has not been received by Buyer within the six (6) month period immediately following the Closing, Parent and Buyer agree to recover incidental, indirect, special, exemplary, punitive or consequential damagesdiscuss the release of such amount on terms mutually acceptable to the parties.
(3e) Anything Buyer and Parent acknowledge and agree that, should the Closing occur, the sole and exclusive remedy of the Indemnified Parties with respect to Losses arising out of the matters referenced in Section 9.2, shall be pursuant to the indemnification provisions set forth in this Article IX (or Section 6.1(c) as applicable), other than in the case of fraud or intentional misrepresentation.
(f) Notwithstanding anything to the contrary contained in this Agreement notwithstandingAgreement, KEI and the Buyers agree amount of Losses that the KEI Indemnified Parties shall (or any of them) may be entitled to look solely indemnification pursuant to Section 9.2 shall be offset, on a dollar for dollar basis, against any amounts actually received by the Indemnified Parties (ior any of them) a letter in respect of credit in the amount Losses forming the basis of $1,200,000 such claim for recovery from a third party under any insurance policy. In addition, Parent shall pay to Buyer any amounts recovered under any insurance policy in connection with respect the Sprint Receivable referenced in Exhibit D and shall use reasonable best efforts to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, collect all such letter of credit shall be reduced amounts receivable pursuant to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policyits insurance policies.
(bg) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything Notwithstanding anything to the contrary contained in this Agreement notwithstandingAgreement, KEI and the Buyers agree that the KEI Losses (other than Losses as a result of a payment or liability relating to a Third Party Claim), shall not include consequential damages, incidental damages, special damages, loss of profits, diminution in value or punitive damages.
(h) If a Buyer Indemnified Parties shall Party would otherwise be entitled to look solely to the R&W Insurance Policy indemnification for Losses with respect to claims brought pursuant a Buyer Warranty Claim relating to Section 2 hereof3.15(a)(v) or Section 3.25 (an “IP Claim”), and, with respect then the indemnifiable Losses shall be limited to the amount of such Losses attributable to any deductible under such insurance policyof (i) the pre-Closing operation of the Business, to a letter of credit (ii) Products or bond Third Party Products in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) inventory at the Effective Time, and (bii) aboveThird Party Products which, KEIas of the Effective Time, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers Company is obligated to purchase (whether pursuant to outstanding purchase orders or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsotherwise).
(di) Each KEI Notwithstanding anything to the contrary in this Agreement, a Buyer Indemnified Party shall use Commercially Reasonable Efforts commercially reasonable efforts to mitigate all seek recovery of Losses upon becoming aware relating to IP Claims attributable to Third Party Products from suppliers of the Company. Except with the prior written consent of Parent (which shall not be unreasonably withheld), a Buyer Indemnified Party will not enter into any event or circumstance that could reasonably be expected settlement with such suppliers for less than one hundred percent (100%) of the amount of such Losses relating to give rise IP Claims attributable to Third Party Products.
(j) Parent shall have no obligation to indemnify any Buyer Indemnified Party pursuant to Section 9.2(a)(i) with respect to any Buyer Warranty Claim relating to Section 3.9 (Accounts Receivable; Accounts Payable) or Section 3.28 (Inventory) for Losses to the extent the value of the inventory or receivables set forth in the Closing Statement reflected the amount of such Losses.
(k) Nothing in this Section 9.3 shall limit the indemnification obligations of the parties under the Supply Agreement; provided, however, that are indemnifiable or recoverable hereunder or in connection herewithBuyer may not recover for the same Losses under both this Agreement and the Supply Agreement.
Appears in 1 contract
Samples: Merger Agreement (Utstarcom Inc)
Limitations on Liability. 6.1 Subject as provided below or in the Tax Deed, the liability of the Vendors under or in respect of the Warranties and/or the covenants on their part contained in the Tax Deed (a"THE INDEMNITIES") With respect shall be limited as follows:-
(A) no claim under the Warranties or the Indemnities ("A RELEVANT CLAIM") may be made unless written notice of the claim concerned has been given to the Vendors before the seventh anniversary of Completion in the case of the Indemnities and the Warranties relating to taxation ("THE TAX WARRANTIES") and before 31st December 1998 in any other case;
(B) no claim under the Warranties may be made unless and until the aggregate amount of all relevant claims exceeds [pound]50,000 although (subject to paragraph (C) of this Clause) once such limit is exceeded the full amount of all such claims and any other claims shall be recoverable; and
(C) No claim will lie by reason of any single breach of the Warranties unless the amount of the claim arising from the breach exceeds [pound]1,000. For this purpose a series of related claims arising from the same circumstances each claim being for an amount of less than [pound]1,000 shall be treated as a single claim and the amounts aggregated accordingly.
(D) the maximum aggregate liability of each of the Vendors under the Warranties and the Indemnities shall not exceed an amount equal to the aggregate of the Consideration received by each Vendor.
6.2 The amount of any claim by the Purchaser shall be reduced to the extent that:
(A) the claim has previously been satisfied pursuant to any Claim other provision of this Agreement or any agreement entered into pursuant hereto; or
(B) the Company concerned has previously recovered under the terms of any insurance policy of such Company in force at the date hereof any loss or damage the subject of the relevant claim; or
(C) provision or reserve for the liability to which indemnification it relates was made in the Accounts; or
(D) the liability to which it relates was reflected in the calculation of the Deferred Consideration.
6.3 The Purchaser shall be entitled to claim both under the Warranties and under the Indemnities by reference to the same subject matter, but any payment in respect of a breach of Warranty shall to such extent satisfy and discharge any claim made by the Purchaser under the Indemnities in respect of the same subject matter and vice versa.
6.4 The provisions of Clauses 3 to 6 (inclusive) of the Tax Deed shall apply mutatis mutandis to any claims under the Tax Warranties.
6.5 If the liability or loss or damage the subject of a claim under the Warranties (other than the Tax Warranties as to which Clause 5 of the Tax Deed shall apply) has previously been made good in full (including all reasonable third party costs and expenses including, but not limited to, legal and professional adviser's costs, the amount of any insurance excess and increased insurance premium) and the Purchaser or a Company subsequently recovers or receives from a third party (not being the other of them or any other member of the Purchaser's Group or a Vendor) a sum which is sought directly referable to the subject matter of such claim, the Purchaser or the Company (as appropriate having regard to which of them is the recipient) shall promptly after the receipt of such sum pay to the Vendors' Solicitors on behalf of the Vendors originally satisfying the claim the net amount received after deducting any costs and expenses reasonably incurred by the Purchaser or the Company in recovering such sum from the third party (including any taxation payable by reason of the receipt thereof) but not in any event exceeding the amount originally paid to it in respect of the claim concerned.
6.6 Any amount paid by the Vendors to the Purchaser in satisfaction of any relevant claim shall be treated as a reduction by that amount in the Consideration.
6.7 Nothing contained in the Disclosure Letter shall limit and none of the limitations contained in this Clause and/or in Clauses 3 to 6 (inclusive) of the Tax Deed shall apply to any breach of any of the Warranties given in paragraphs (77), (109), (110), (111), (112), (119) and (120) of Schedule 7.
6.8 Nothing in this Agreement or the Tax Deed or otherwise shall limit the liability of any Vendor hereunder or thereunder where such Vendor has made a fraudulent, reckless or grossly negligent misrepresentation or has deliberately failed to disclose to the Purchaser information known to him.
6.9 No disclosure in the Disclosure Letter or otherwise shall limit and Clause 6.1 shall not apply to any relevant claim arising by reason of transactions effected between and/or loans, benefits and/or other distributions made or deemed for tax purposes to have been made or provided on or before Completion by or to the Company by or to all or any of the Vendors or any director shareholder associate or connected person of all or any of the foregoing save that this sub-clause shall not apply to the disclosure made by reference to paragraphs 10(e), 23, 26, 27, 53, 89, 91 and 99 of Schedule 7.
6.10 The Purchaser shall not be entitled to recover a loss suffered by it for a breach of the Warranties to the extent that such loss is increased by:
6.10.1 any change in the law (including a change in the principles of taxation) after Completion imposing an obligation which did not exist at Completion (but not such a change which increased a liability existing at Completion) or;
6.11.2 any voluntary act or omission of the Purchaser not in the ordinary course of business where a reasonable and commercial alternative course of action is available which would not lead to such a loss and where the Purchaser had actual knowledge that the circumstances could give rise to a relevant claim;
6.11 The Purchaser acknowledges and confirms that it has formed no intention of bringing a warranty claim under Section 1 the Agreement as at the date of this Agreement, .
6.12 The Purchaser will disclose in writing to the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively Vendors such information and documents relating to claims as may be reasonably requested by the Vendors insofar as the Vendors would be entitled to pursue Claims and recover Losses as provided in Section 1 receive such documents under the High Court rules of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b)discovery if proceedings were commenced.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary 6.13 Nothing contained in this Agreement notwithstandingwill be deemed to relieve the Purchaser from a common law duty to the Vendors to mitigate its loss.
6.14 The Purchaser warrants and represents to the Vendors that it has the requisite powers to enter into and perform this Agreement, KEI and the Buyers agree that obligations to be assumed or performed by it will constitute valid, legal and binding obligations on it.
7.1 If at any time prior to the KEI Indemnified Parties date on which the Deferred Consideration or any part thereof is due to be paid the Purchaser has made any claim under this Agreement or the Tax Deed (a "CLAIM") and the Claim has not at the date been paid or satisfied by the Vendors in accordance with the terms of this Agreement or the Tax Deed (as appropriate) then:-
(A) if the Claim has been finally decided the Purchaser shall be entitled to look solely to deduct from any payment of the Deferred Consideration the amount due in respect of the Claim;
(iB) a letter of credit in if the amount of $1,200,000 the Claim has not been finally decided the Purchaser shall on the due date for recovery with payment place on Cash Deposit an amount equal to the alleged amount of the Claim and such payment shall pro tanto satisfy the obligation of the Purchaser to make the relevant payment in respect of the Deferred Consideration. The Vendors shall be entitled by notice in writing to any Claim arising under Section 1 the Purchaser within 5 business days of this Agreement; provided the banking of the Cash Deposit to notify it that they consider the amount placed on Cash Deposit to be excessive. If within 20 business days of such notice by the Vendors to the Purchaser, the parties have been unable to agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI the Cash Deposit, the Vendors may request the appointment of the deductible payable with respect Independent Accountant pursuant to the R&W Insurance Policyprovisions of paragraph (11) of Schedule 5 to determine a fair estimate of the loss which the Purchaser is liable to suffer by reason of the alleged breach and which should be retained on the Cash Deposit. Paragraphs (10) and (12) of Schedule 5 shall have effect (mutatis mutandis) in relation to any appointment of the Independent Accountant pursuant to this Clause as they do for the purpose of Schedule 5. If the Independent Accountant shall determine that the amount of the Cash Deposit exceeds a fair estimate of the loss which the Purchaser is liable to suffer, the Purchaser shall forthwith after such determination pay such excess to the Vendor's Solicitors together with any interest earned on such excess.
(b) With 7.2 When any claim in respect to any Claim asserted by any third party as of which a payment has been placed on Cash Deposit has been finally decided an amount of the Cash Deposit equal to the matters set forth in Section 2 liability of the Vendors shall forthwith be paid to the Purchaser and the balance (if any) shall, provided that no other Claim shall then be outstanding, be released to the Vendors' Solicitors.
7.3 For the purposes of this AgreementClause only, the following provisions a Claim shall apply:be deemed to be "FINALLY DECIDED" if either:-
(1A) The KEI Indemnified Parties so determined by a court of competent jurisdiction from which there is no appeal or from whose judgment the Vendors or the Purchaser or relevant Company (as the case may be) do not or does not appeal within any applicable time limit; or
(B) the Vendors and the Purchaser shall collectively be entitled to pursue Claims and recover Losses as provided so agree in Section 2 writing.
7.4 For the purposes of this Agreement, in Agreement:-
(A) legal proceedings shall not be deemed to have been commenced unless they have been both issued and served on the aggregate not in excess Vendors; and
(B) neither the amount of the lesser Cash Deposit nor the other provisions of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Clause shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to regarded as imposing any limit on the amount of any deductible proper claims under this Agreement or the Tax Deed.
7.5 Any release of monies from the Cash Deposit in satisfaction of any Claim shall be made first out of the principal monies forming part thereof and thereafter (to the extent such insurance policyprincipal monies are not sufficient) out of interest earned on the principal monies. Subject to the foregoing and to the retention of any such interest on Cash Deposit on account of any Claim(s) which has or have not at the relevant time been finally decided, any interest earned on principal monies released from the Cash Deposit shall be paid to the person receiving the same at the same time as they are released.
7.6 The Cash Deposit shall be an interest bearing deposit account opened at a letter United Kingdom branch of credit one of the clearing banks (or bond such other bank as the parties shall agree) in form reasonably satisfactory to KEI. Agreement Regarding Representations the joint names of the Vendors' Solicitors and Warranties
the Purchaser's Solicitors on terms that no amounts (cincluding interest) Except shall be paid out therefrom otherwise than as expressly provided in Section 3(a) this Clause. The mandate applicable to the Cash Deposit shall be operated jointly by the Vendors' Solicitors and (b) above, KEI, Purchaser's Solicitors as provided in the Buyers and Letter of Instruction in Agreed Form which the KEI Indemnified Parties may not proceed against Ridgewood, parties shall issue to such Solicitors on the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware making of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewithCash Deposit.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Shares (Elcom International Inc)
Limitations on Liability. (a) With respect Notwithstanding anything contained herein to any Claim for which indemnification the contrary, liability is sought under Section 1 of this Agreement, the following provisions shall applylimited as follows:
(1) The KEI Indemnified Parties OHL shall collectively not be entitled liable for any loss or injury to pursue Claims and recover Losses Products stored, however caused, unless such loss or injury resulted from: (a) OHL’s breach of the agreement, (b) OHL’s failure to enforce Landlord’s compliance with its obligations under the lease, (c) OHL’s negligence or willful misconduct, (d) shrinkage in excess of [*]% as provided in Section 1 of this Agreement, 10(E)(4) below and/ or (e) from other products in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided Facility that no such liability limits apply to subsection 1(b)cause contaminant odors with CLIENT’s inventory.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidentalProducts are not insured by OHL against loss or injury however caused [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, indirectMARKED BY BRACKETS, specialIS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, exemplary, punitive or consequential damages.AS AMENDED
(3) Anything CLIENT declares that damages or loss to Product resulting from OHL’s failure to exercise reasonable care as described in (A) above are limited to CLIENT’s landed wholesale cost per unit for Product damaged up to a maximum of [*] per occurrence.
(4) CLIENT agrees to a [*]% shrink allowance, based on the contrary contained value of Products stored for a period of one year for loss due to damage, mysterious disappearance or other inventory shrink. Value of the Products is determined by the number of items received per year times the average CLIENT’s paid wholesale cost per item.
(5) OHL shall not be liable for demurrage or detention, delays in this Agreement notwithstandingunloading inbound cars, KEI trailers or other containers, or delays in obtaining and the Buyers agree that the KEI Indemnified Parties loading cars, trailers or other containers for outbound shipment unless OHL has failed to exercise reasonable care.
(6) Neither party shall be entitled to look solely to (i) liable for indirect, incidental, consequential, punitive, or exemplary damages, regardless of the nature of the claim being in contract, tort, or otherwise, and whether in law or in equity, whether the party in breach was advised of, or otherwise should have been aware of, the possibility of such damages. The foregoing is a letter separate, essential term of credit this agreement and shall be effective even in the amount event of $1,200,000 for recovery the failure of any remedy, exclusive or not. In no event, however, will the preceding exclusions on remedies apply with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution either party’s breach of the Accountant Claimconfidentiality provisions, such letter of credit shall be reduced to $250,000 for the duration of the any indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought obligation pursuant to Section 2 hereof9 - INDEMNIFICATION AND INSURANCE, and, with respect to or any misappropriation of the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsparty’s intellectual property.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 21.2 For avoidance of doubt no consequential or indirect damages, such as loss of profit, loss of business, or incidental damages shall be compensated.
21.3 Should the breach of this AgreementAgreement be a consequence of fraud (“bedrog” / “fraude”), intentional fault, intentional misconduct (“opzettelijke xxxx” / “faute intentionnelle”) of the defaulting Party, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified affected Parties shall be entitled to look solely claim full compensation or indemnification for all losses, damages, charges, fees without any cap being applicable, to (i) the exclusions of indirect and consequential damage.
21.4 In the event of a letter breach of credit this Agreement by a Party, the All NEMO Committee shall decide upon possible measures to mitigate the negative consequences of such breach. The defaulting Party shall be allowed to participate in the deliberations of the All NEMO Committee in this respect, but shall not be entitled to vote in respect of the measures to be taken.
21.5 Should the sum of all damages suffered by two or more affected Parties exceed the amount of $1,200,000 for recovery with respect the liability cap, the maximum compensation or indemnification to any Claim arising under Section 1 of this Agreement; provided that be paid by the parties agree that, upon defaulting Party towards the final, non-appealable resolution of the Accountant Claim, such letter of credit affected Parties shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policypro rata.
21.6 In any case where a Party (bthe “Defaulting Party”) With respect to is in breach of this Agreement (whether by act or omission), the Defaulting Party shall indemnify and hold harmless the other Parties (each a “Defendant Party”) against any Claim asserted claim, demand, action or proceedings made by any third party which may reasonably be considered to have arisen or to have been made in connection with or as a result of such breach (each a “Third Party Claim”), provided that the aggregate liability of the Defaulting Party under such indemnity shall be subject to the matters set forth cap stipulated in Section 2 clause 21.1 above.
21.7 In any case where a breach of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess Agreement by a Party also constitutes a breach of the lesser of (i) ANDOA and/or the actual compensatory damages suffered by such KEI Indemnified PartiesANIDOA, multiple simultaneous or (ii) $8,000,000.
(2) KEI and successive claims against the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in Defendant Party under this Agreement notwithstandingand/or under the ANIDOA and/or under the ANDOA in respect of the same breach shall not be permitted, KEI and the Buyers agree provided that the KEI Indemnified Parties affected Party shall be entitled free to look solely to choose which agreement shall be the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to basis of its claim against the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsDefendant Party.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: All Nemo Cooperation Agreement
Limitations on Liability. In all circumstances, Brink’s Liability is subject to the following limitations, to which You agree:
1. The maximum amount of Brink’s Liability for any one Shipment shall not exceed Fifty Million U.S. Dollars ($50,000,000), unless otherwise specifically agreed in writing. For any purely domestic Shipment, the maximum amount of Brink’s Liability for any one Shipment shall not exceed One Million U.S. Dollars ($1,000,000), unless otherwise specifically agreed in writing. Notwithstanding the foregoing, for any purely domestic Shipment within the United States, the maximum amount of Brink’s Liability for any one Shipment shall not exceed Fifty Million U.S. Dollars ($50,000,000), unless otherwise specifically agreed in writing. Brink’s liability for all direct damages, including but not limited to any liability for breach of personal data and excluding Liability for any loss or damage to Shipments, shall not exceed the total amount of charges received by Brink’s for the particular Shipment giving rise to such direct damages to You.
2. Brink’s Liability whether as a result of breach of contract, tort, indemnity, warranty or otherwise, shall not, under any circumstances, include special, incidental, consequential, indirect or punitive losses or damages including but not limited to, loss of profits (whether direct or indirect), loss of market, loss of business, loss of goodwill, lost sales or other indirect or consequential losses, interest or attorneys’ fees, whether or not caused by the fault or neglect of Brink’s and whether or not Brink’s had knowledge that such losses or damages might be incurred.
3. Nothing in this Contract limits or excludes Brink’s Liability (if any) to You • for personal injury or death resulting from Brink’s negligence; • for any matter for which it would be illegal for Brink’s to exclude or to attempt to exclude its liability; or • for fraud on the part of Brink’s.
4. Brink’s will only be liable for losses relating to a mysterious disappearance from or damage to the Property within any container if, • the container has been properly sealed and packaged as required by this Contract; and • additional handling charges relating to fragile Property have been agreed to by You and Brink’s in writing for the Shipment, if applicable; and • the container shows visible signs of tampering or damage; and • the delivery document for the Consignment contains (a) With respect to any Claim for which indemnification is sought under Section 1 a notation by the receiving party and (b) acknowledgement by Brink’s of such tampering or damage. Provided the container has been properly sealed and packaged as required by this AgreementContract at the time of customs inspection, the following provisions Brink’s shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses accept responsibility as provided herein if the loss or damage to Property has occurred as a result of the package being opened and inspected by customs officials or other related governmental authorities. Notwithstanding the foregoing, Brink’s has no liability for a mysterious disappearance of Property within any Shipment in the event that such Shipment is out of Brink’s control, such as the instances referred to in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b)X.C.9 herein below.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive 5. Brink’s shall not be liable under any right to recover incidental, indirect, special, exemplary, punitive circumstance for any damage or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely breakage to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree thatdisplay material (glass or otherwise), upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) Property as a letter result of credit breakage of, or damage caused by, display material, and/or (iii) damage to an outer container.
6. Brink’s shall not be liable for non-performance or delays caused by strikes, lockouts or other labor disturbances, riots, authority of law, acts of God or means beyond Brink’s control.
7. Unless otherwise specifically agreed in writing, Brink’s does not agree to hold any Shipment until receipt of release instructions from and payment of Service charges by an entity not a party to the Contract. If Brink’s does otherwise hold any Shipment pending such release instructions, it does so as a courtesy only. Under no circumstances shall Brink’s be liable for the Consignee’s failure to pay any amount to You, including the value of the Property. Should Brink’s agree to collect shipping charges for a Shipment from the Consignee or any entity not a party to the Contract, You shall remain liable for such charges, should that entity fail to pay. You agree to pay all Brink’s charges incurred in returning a Shipment to You should release instructions not be received by Brink’s within a reasonable time.
8. Brink’s will not be liable for loss or damage of a Shipment if You fail to comply with any of the representations and warranties set out in this Contract. Upon loss or damage to Property, the parties shall promptly and diligently assist each other to establish the identity of the Property lost or damaged and shall take all such other reasonable steps as may be necessary to assure the maximum amount of $100,000 for payment by KEI salvage at a minimum cost. Affirmative written proof of the deductible payable with respect Property lost or damaged, subscribed and sworn to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this AgreementYou and substantiated by Your books, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims records and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties accounts shall be entitled furnished to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsBrink’s.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Valuables Transport Contract
Limitations on Liability. (a) With Notwithstanding anything to the contrary herein, no Buyer Indemnified Party shall be entitled to indemnification under Section 11.1 with respect to any Claim Losses to the extent such Losses (i) were reflected in the calculation of the Final Working Capital Adjustment, the Final Closing Date Indebtedness, the NAV Transfer Amount paid to Buyer pursuant to Section 3.10, or the Final Restricted Cash Shortfall; provided, however, that no amount reflected in a reserve taken into account in the calculation of the Final Working Capital Adjustment shall limit the right to indemnification under Section 11.1 unless (and solely to the extent that) the amount of such reserve was increased after December 31, 2007 specifically to reserve against the matter for which indemnification is was sought under pursuant to Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims 11.1 and recover Losses as provided in Section 1 of this Agreement, such increase was reflected in the aggregate not in excess calculation of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified PartiesFinal Working Capital Adjustment, or (ii) $1,200,000arise or result from any failure of the Company to obtain Ruling 3 or 5 as requested in the PLR Request; provided provided, however, that no such liability limits apply this clause (ii) of this Section 11.3 shall be inapplicable (A) to subsection 1(b).
the extent (x) any information (including values) contained in, or any representation made by the Company or any of its representatives in, the PLR Request to obtain Ruling 3 or 5 or otherwise made to (1) the Internal Revenue Service, (2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive Ernst & Young LLP or consequential damages.
(3) Anything the Tax Accountant, was not accurate, complete and correct and (y) such inaccuracy, incompletion, or incorrectness materially contributed to or resulted in a withdrawal, modification or other ineffectiveness of any favorable ruling delivered in response to the contrary contained in this Agreement notwithstanding, KEI and PLR Request to obtain Ruling 3 or 5 or any opinion of the Buyers agree that the KEI Indemnified Parties shall be entitled Tax Accountant delivered pursuant to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery Section 10.7 with respect to such ruling, or the Internal Revenue Service taking a position that differs from that expressed in any Claim arising under such opinion or (z) any information (including values) included in Ernst & Young LLP’s Section 1 280G calculations provided to Buyer and its Affiliates, advisors or representatives was not accurate, complete and correct (or as a result of this Agreement; any such inaccurate, incomplete or incorrect information provided by the Company, any deemed payment that would constitute a parachute payment within the parties agree that, upon the final, non-appealable resolution meaning of Section 280G of the Accountant ClaimCode and the regulations promulgated thereunder was not included in such calculation) and such inaccuracy, incompletion, or incorrectness materially contributed to or resulted in such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(bLoss, or (B) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to Losses arising out of or resulting from termination of employment by Newco or any of the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth Other Subsidiaries of an Officer listed in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess 11.3 of the lesser of (i) Company Disclosure Schedule during the actual compensatory damages suffered by such KEI Indemnified Parties, 12-month period prior to or (ii) $8,000,000following the Closing.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Booz Allen Hamilton Holding Corp)
Limitations on Liability. (a) With respect to any Claim Except for which indemnification is sought claims for equitable relief and the Extended Indemnification Obligations, claims against the Escrow Fund shall be the sole recourse of Buyer Indemnified Persons under Section 1 of this Agreement. Notwithstanding anything herein to the contrary, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) in seeking indemnification for Damages under this Article VIII, no Buyer Indemnified Person shall make any claim for Damages unless and until the actual compensatory damages suffered by aggregate of all Damages equals or exceeds $65,000, inclusive of legal fees (the “Basket”), in which event such KEI Buyer Indemnified Parties, or Person may make claims for all Damages (ii) including the first $1,200,00065,000 thereof); provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter the maximum cumulative aggregate total liability (including without limitation any liability for claims under Section 8.4 hereof) of credit in Seller will not exceed the amount of the Escrow Fund (provided that of this amount, Buyer Indemnified Persons shall only be entitled to recover up to $100,000 for payment by KEI 1,625,000 of the deductible payable with respect Escrow Fund for indemnification claims pursuant to Section 8.4 hereof); provided, however, that the R&W Insurance Policyforegoing limitations under (i) and (ii) above will not apply to any indemnification claim by any Buyer Indemnified Person that arises from or as a result of the Extended Indemnification Obligations or for indemnification pursuant to Section 8.2(b).
(b) With respect to any Claim asserted by any third party as Notwithstanding anything herein to the matters set forth in Section 2 of this Agreementcontrary, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) in seeking indemnification for Damages under this Article VIII, no Seller Indemnified Person shall make any claim for Damages unless and until the actual compensatory damages suffered by aggregate of all Damages equals or exceeds $65,000, inclusive of legal fees (the “Basket”), in which event such KEI Seller Indemnified Parties, or Person may make claims for all Damages (including the first $65,000 thereof); and (ii) the maximum cumulative aggregate total liability of Buyer will not exceed $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental2,750,000; provided, indirecthowever, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible foregoing limitations under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(ai) and (bii) above, KEI, the Buyers and the KEI Indemnified Parties may above will not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise apply to any Losses indemnification claim by any Seller Indemnified Person that are indemnifiable arises from or recoverable hereunder or in connection herewithas a result of the Buyer Extended Indemnification Obligations.
Appears in 1 contract
Samples: Asset Purchase Agreement (Roxio Inc)
Limitations on Liability. Except for claims arising from a breach of confidentiality obligations under ARTICLE 8 or in cases of fraud, gross negligence, or willful misconduct, no party hereto shall be liable for any lost profits or revenue, lost opportunity, consequential, punitive, special or incidental damages under this ARTICLE 7 (aand no claim for indemnification hereunder shall be asserted) With respect as a result of any breach or violation of any covenant or agreement of such party (including under this ARTICLE 7) in or pursuant to any Claim for which indemnification is sought under Section 1 of this Agreement. In connection with the foregoing, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims parties hereto acknowledge and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of agree that (i) the actual compensatory damages suffered by Payer’s damages, if any, for any such KEI Indemnified Parties, action or claim will typically include Losses for 250212926 v1 Revenue Payments that the Payer was entitled to receive but did not receive timely or at all due to such indemnifiable event and (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Payer shall be entitled to look solely make claims for all such missing or delayed Revenue Payments as Losses hereunder, and such missing or Revenue Payments shall not be deemed consequential, punitive, special, indirect or incidental damages. . Except as set forth in Section 6.9, Section 10.11, and Exhibit B, and except for any event of default or the enforcement of any remedies under the Security Documents, from and after Closing, the rights of the parties hereto pursuant to (iand subject to the conditions of) a letter this ARTICLE 7 shall be the sole and exclusive remedy of credit in the amount of $1,200,000 for recovery parties hereto and their respective Affiliates with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree thatLosses (whether based in contract, upon the final, non-appealable resolution tort or otherwise) resulting from or relating to any breach of the Accountant Claimrepresentations and warranties made under this Agreement or any certificate, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereofdocument or instrument delivered hereunder, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect each party hereto hereby waives, to the R&W Insurance Policy.
(b) With fullest extent permitted under applicable law, and agrees not to assert after Closing, any other claim or action in respect to of any Claim asserted by any third party as to such breach. Notwithstanding the matters set forth in Section 2 of this Agreementforegoing, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreementclaims for fraud, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Partiesgross negligence, or (ii) $8,000,000willful misconduct shall not be waived or limited in any way by this ARTICLE 7.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect Other than as specifically provided for claims as to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided matters specified in Section 1 of this Agreement12.1, in no claim for indemnification shall be made hereunder unless asserted by a written notice given to the aggregate not in excess of Indemnifying Party on or before the lesser of (i) Expiration Date or the actual compensatory damages suffered by such KEI Indemnified PartiesExtended Expiration Date, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b)as the case may be.
(2b) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties No claim for indemnification shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery made hereunder with respect to any Claim arising under Section 1 matter (i) unless and until the total amount of this AgreementDamages exceeds $50,000 in the aggregate ("Minimum Damages"), and then only for the amount by which such Damages exceeds Minimum Damages; provided and (ii) to the extent that the parties agree thattotal amount of Damages exceeds $10,000,000 ("Maximum Damages"); PROVIDED, upon HOWEVER, that any claim for Damages resulting from IHI's failure to perform or observe its covenants as to the finalExcess Obligations Reimbursement of Section 11.8 may be made without being subject to Minimum Damages and shall also not be included in the calculation of, non-appealable resolution of the Accountant Claim, such letter of credit and shall be reduced in addition to, Maximum Damages.
(c) The Indemnified Person shall act in good faith and in a commercially reasonable manner to $250,000 mitigate any Damages for which it may seek indemnification under this Section 12.
(d) An indemnity payment for Damages otherwise due and payable under this Section 12 shall be decreased to the duration extent of any (i) net reduction of tax liability the indemnification set forth in Section 1(b) hereofIndemnified Party or any affiliated party thereof actually realizes as a result of such indemnifiable loss, and (ii) a letter of credit insurance proceeds the Indemnified Party or any affiliated party thereof actually collects in connection with the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policyindemnifiable loss.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1e) The KEI Indemnified Seller Parties shall collectively be entitled to pursue Claims and recover Losses as provided in not have any liability under Section 2 of this Agreement12.2, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers shall have no liability under Section 12.3, unless the notices required under Sections 12.4 and 12.5 are delivered on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidentalor before the Expiration Date or the Extended Expiration Date, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to as the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEIcase may be. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.ASSET PURCHASE AGREEMENT 24 EXECUTION COPY
Appears in 1 contract
Limitations on Liability. (a) With Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 6.2(b) shall not apply, and Purchaser shall not be able to exercise any indemnification rights with respect thereto under this Section 6, except to the extent any Indemnification Claim where the Damages related to that Indemnification Claim (or series of Indemnification Claims arising from the same or substantially similar facts or circumstances) exceeds $5,000 (“Minimum Claim Amount”). If the amount of Damages for which an individual Indemnification Claim (or series of Indemnification Claims arising from the same or substantially similar facts or circumstances) exceeds the Minimum Claim Amount, then the Purchaser Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Indemnity Escrow Fund against all Damages for such Indemnification Claim, regardless of the Minimum Claim Amount.
(b) Without limiting the effect of any other limitation set forth in this Section 6, the indemnification is sought provided for in Section 6.2(b) shall not apply, and Purchaser shall not be entitled to exercise any indemnification rights with respect thereto under Section 1 6, except to the extent that the aggregate amount of the Damages against which Purchaser Indemnified Parties would otherwise be entitled to be indemnified under Section 6.2(b) exceeds $162,500 (the “Deductible”). If the aggregate amount of such Damages exceeds the Deductible, then Purchaser Indemnified Parties shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Indemnity Escrow Fund only against the portion of such Damages in excess of the Deductible.
(c) Except for claims based on Seller’s fraud, (i) Seller’s aggregate liability for indemnification pursuant to Section 6.2(a) shall not exceed the sum of the Upfront Amount, the Deferred Payments, and the Milestone Payments actually received by the Seller (which are hereby deemed to include amounts offset by Purchaser pursuant to Section 1.5(f), Section 1.6(d) or another provision of this Agreement, ) and (ii) Seller’s aggregate liability for indemnification pursuant to Section 6.2(b) shall not exceed the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, amount remaining in the Indemnity Escrow Fund; provided, however, that if (x) Purchaser has delivered to Seller a valid Notice of Indemnification Claim with respect to a breach of an Other Seller Representation prior to the Representation Termination Date, (y) Purchaser has recovered amounts under the R&W Policy in respect of one or more Fundamental Representations or in respect of the obligations of Seller to pay or indemnify against certain Taxes under Section 7.1 and (z) the coverage limits of the R&W Policy have been exhausted such that Purchaser is unable to recover some or all the amount of Damages with respect to breaches of any Other Seller Representation, written notice of which is delivered to the Seller prior to the expiration of the original term of the R&W Policy, Seller’s aggregate liability for indemnification pursuant to Section 6.2(b) shall not in excess of exceed the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Partiesamount of recoveries under the R&W Policy in respect of breaches of Fundamental Representations or in respect of the obligations of Seller to pay or indemnify against certain Taxes under Section 7.1, or (ii) the amount of Damages in respect of Other Seller Representations Purchaser is unable to recover under the R&W Policy as the result of the recoveries described in the preceding clause (i) and (iii) five hundred thousand ($1,200,000; provided that no such liability limits apply to subsection 1(b500,000).
(2d) KEI and Except in the Buyers on behalf case of each of such KEI Indemnified Parties hereby waive any right to recover incidentalSeller’s fraud, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Purchaser Indemnified Parties shall be entitled to look solely to indemnification recourse for the following Indemnification Claims in accordance with the order of priority set forth below:
(i) Any indemnification payment to which a letter of credit Purchaser Indemnified Party is entitled resulting from an Indemnification Claim made under Section 6.2(a) shall be made: (A) first, as a payment to such Purchaser Indemnified Party from the Indemnity Escrow Fund (to the extent cash remains held in the amount Indemnity Escrow Fund) until the Purchaser Indemnified Parties have suffered Damages that would be covered by the R&W Policy but for the exclusion thereunder of $1,200,000 claims not exceeding the Retention Amount; (B) second, the Purchaser Indemnified Parties shall make a claim to recover such Damages under the R&W Policy in accordance with the terms thereof as contemplated by Section 6.3(e); and (C) third, any such remaining payment shall be made, at Purchaser’s election, (x) by Seller and/or (y) through Purchaser exercising its rights of setoff provided in this Agreement.
(ii) Any indemnification payment to which a Purchaser Indemnified Party is entitled resulting from an Indemnification Claim made under Section 6.2(b) shall be made: (A) first, as a payment to such Purchaser Indemnified Party from the Indemnity Escrow Fund (to the extent cash remains held in the Indemnity Escrow Fund) until the Purchaser Indemnified Parties have suffered Damages that would be covered by the R&W Policy but for recovery the exclusion thereunder of claims not exceeding the Retention Amount; (B) second, the Purchaser Indemnified Parties shall make a claim to recover such Damages under the R&W Policy in accordance with the terms thereof as contemplated by Section 6.3(e) and (C) third, if the proviso to Section 6.3(c) is applicable, then any such remaining payment shall be made, at Purchaser’s election, (x) by Seller and/or (y) through Purchaser exercising its rights of setoff provided in this Agreement; and
(iii) Any indemnification payment to which a Purchaser Indemnified Party is entitled resulting from an Indemnification Claim made under Section 6.2(c) shall be made, at Seller’s election, (x) by Seller and/or (y) through Purchaser exercising its rights of setoff provided in this Agreement, provided, that if all amounts due to Purchaser resulting from an Indemnification Claim made under Section 6.2(c) have not been paid within twelve (12) months of the date of resolution of such Indemnification Claim, then Seller shall pay Purchaser the remaining amounts due with respect to any such Indemnification Claim arising under on demand by Purchaser.
(e) If the Damages incurred with respect to an Indemnification Claim pursuant to Section 1 of this Agreement; provided that 6.2(a) or Section 6.2(b) are covered by the parties agree thatR&W Policy, upon then Purchaser shall make a claim for recovery for such Damages in accordance with the final, non-appealable resolution requirements of the Accountant Claim, such letter of credit shall be reduced R&W Policy and respond in good faith and in a timely manner to $250,000 for any information requests from the duration of the indemnification set forth in Section 1(binsurer(s) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each subject matter of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damagesIndemnification Claim.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect Notwithstanding anything to any Claim for which indemnification is sought under Section 1 of the contrary contained in this Agreement, the following provisions no party to this Agreement shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims indemnification pursuant to this Article XV and, if applicable, Section 9.6(d), unless and recover Losses as provided until its aggregate Damages shall be in excess of one hundred thousand dollars (US$100,000), at which time such party shall be entitled to indemnification for the full amount of its Damages to the extent such Damages exceed such amount. Notwithstanding anything in this Agreement to the contrary, the limitation in the preceding sentence shall not apply to Purchaser’s or Parent’s indemnification obligations contained in Section 1 15.2(a) concerning any provisions contained in any Branch Lease assigning any liability to Seller in the event of this Agreementan assignment of such lease. In no event shall the Damages payable by Seller, individually, or by Purchaser and Parent, collectively, in the aggregate exceed forty million dollars (US$40,000,000).
(b) The amount of any Damages arising from a breach by Seller of the representations and warranties set forth in Section 6.8 due to the existence of a Lien which is not in excess respect of borrowed money and does not materially impair the continued use and operation of the related Purchased Asset shall be limited to the lesser of (i) the actual compensatory damages suffered by cost of satisfying or removing such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, Lien and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect actual impairment to the R&W Insurance Policy.
(b) With respect to any Claim asserted Purchased Asset caused by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each existence of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damagesLien.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and EACH OF THE PARTIES TO THE FULLEST EXTENT PERMITTED BY LAW IRREVOCABLY WAIVES ANY RIGHTS THAT THEY MAY HAVE TO PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT (b) aboveINCLUDING, KEIWITHOUT LIMITATION, the Buyers and the KEI Indemnified Parties may not proceed against RidgewoodLOST PROFITS), the Sellers or their respective shareholdersEXEMPLARY AND CONSEQUENTIAL DAMAGES IN RESPECT OF ANY CLAIM BASED UPON, directorsARISING OUT OF, officersOR IN CONNECTION WITH, managersTHIS AGREEMENT OR ANY OTHER AGREEMENT, membersINSTRUMENT OR DOCUMENT CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, employees or agents other than on grounds constituting fraud or violation of securities lawsCOURSE OF DEALING, STATEMENTS OR ACTIONS OF ANY OF THEM RELATING THERETO. NOTWITHSTANDING THE FOREGOING, IN THE EVENT A NONAPPEALABLE COURT ORDER REQUIRES A PARTY TO PAY A THIRD PARTY THAT IS NOT AN AFFILIATE SUCH DAMAGES AND SUCH DAMAGES ARE SUBJECT TO THE OTHER PARTY’S INDEMNIFICATION OBLIGATION CONTAINED IN THIS AGREEMENT AND AS LIMITED BY OTHER PROVISIONS IN THIS AGREEMENT, SUCH DAMAGES SHALL NOT BE SUBJECT TO THE LIMITATION ON LIABILITY CONTAINED IN THIS SECTION 15.4(c).
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Community Bank System Inc)
Limitations on Liability. Notwithstanding anything to the contrary herein:
(a) With respect Parent shall not be liable for any breach of any representation or warranty of Parent set forth in this Agreement attributable to a single course of conduct or related set of facts, events or circumstances unless the aggregate amount of Damages incurred by the Purchaser Indemnitees for such breach exceeds $125,000 (the “De Minimis Amount”); provided, however, that the limitations set forth in this Section 9.4(a) shall not apply to Damages arising out of or resulting from any Claim for which indemnification is sought under Section 1 breach of this Agreement, any Fundamental Representation (other than a breach of the following provisions shall apply:representations and warranties in Sections 4.11(b) through (d));
(1b) The KEI Indemnified Parties Parent shall collectively not be entitled liable for any breach of any representation or warranty of Parent set forth in this Agreement unless the aggregate amount of Damages incurred by the Purchaser Indemnitees for such breach and all other breaches otherwise subject to pursue Claims indemnification hereunder exceeds $20,000,000 (the “Deductible”), and recover Losses as provided then only to the extent such aggregate Damages exceed such amount; provided, however, that the limitations set forth in this Section 1 9.4(b) shall not apply to indemnification for Damages arising out of or resulting from any breach of any Fundamental Representation (other than a breach of the representations and warranties in Sections 4.11(b) through (d)) (and, for the avoidance of doubt, (A) Damages attributable to a single course of conduct or related set of facts, events or circumstances that do not exceed the De Minimis Amount pursuant to Section 9.4(a) shall not be counted towards the calculation of the Deductible, and (B) Damages indemnifiable and actually paid by Parent on account of any breach of any Fundamental Representation shall not be counted towards the calculation of the Deductible);
(c) in no event shall Parent’s aggregate Liability arising out of or relating to Section 9.2(a)(i) exceed $150,000,000 (the “Cap”); provided, however, that the Cap shall not apply to indemnification for Damages arising out of or resulting from any breach of any Fundamental Representation;
(d) notwithstanding anything to the contrary in this Agreement, in no event shall Parent’s aggregate Liability arising out of or relating to Section 9.2(a)(i), Section 9.2(a)(ii) or Section 10.1 exceed the Purchase Price; provided, however, that the limitations set forth in this Section 9.4(d) shall not apply with respect to any breach of the covenants set forth in Section 1.6;
(e) Parent shall not be liable for any Brazil Environmental Liabilities pursuant to Section 9.2(a)(iv) unless the aggregate not amount of Damages incurred by Purchaser Indemnitees for all Brazil Environmental Liabilities otherwise subject to indemnification under this Agreement exceeds $3,000,000 (the “Brazil Environmental Deductible”), and then only to the extent such aggregate Damages exceeds such amount, and in excess of no event shall Parent's aggregate Liability for such Damages exceed $35,000,000 (the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b“Brazil Environmental Cap”).;
(2f) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties no Purchaser Indemnitee shall be entitled to look solely indemnification under Section 10.1 or this Article IX to (i) the extent a letter of credit Liability or reserve relating to the matter giving rise to such Damages has been included in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution calculation of the Accountant ClaimClosing Adjustment;
(g) each Indemnified Party shall, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect extent required by applicable Law, have a duty to use commercially reasonable efforts to mitigate any Claim asserted by any third party as Damages arising out of or relating to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and or the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses transactions contemplated hereby upon becoming aware of any event or circumstance that could would reasonably be expected to to, or does, give rise thereto;
(h) the amount of any Damages for which an Indemnified Party claims indemnification under this Agreement shall be reduced by the amount of (i) any insurance proceeds actually received (net of any deductibles) from third party insurers with respect to such Damages (provided that the amount of such insurance proceeds deemed to have been received will also be net of any increase in premium (and retro-premium adjustments) for such insurance policies to the extent arising out of or resulting from such Damages), (ii) any Tax Benefit that is actually realized in the year in which such Damages are incurred, which Tax Benefit is attributable to such Damages or to the facts giving rise to such Damages, and (iii) any indemnification, contribution, offset or reimbursement payments actually received from third parties with respect to such Damages; provided, that such Indemnified Party shall use its good faith efforts to obtain recoveries from insurers, including title insurers, and other third parties in respect of this Section 9.4(h). If an Indemnified Party (A) actually receives insurance proceeds from third party insurers with respect to such Damages or (B) actually receives indemnification, contribution, offset or reimbursement payments from third parties with respect to such Damages, in each case, at any time subsequent to any Losses indemnification payment pursuant to Section 10.1 or this Article IX and subject to the limitations in the preceding sentence, then such Indemnified Party shall promptly reimburse the applicable Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to such amount actually received by such Indemnified Party;
(i) in the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article IX or Section 10.1, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification;
(j) notwithstanding anything provided under applicable Law, no Party shall have any Liability (including, without limitation, under Article X or this Article IX) for, and Damages shall not include, (A) any incidental, consequential, special or indirect Damages or Damages based on lost profits or loss in value, except to the extent any such Damages were reasonably foreseeable or (B) any punitive Damages or Damages that are indemnifiable or recoverable hereunder or based on a multiple of earnings, in connection herewitheach case of clauses (A) and (B), except to the extent any such Damages are awarded and paid with respect to a Third Party Claim as to which a Party is entitled to indemnification under this Agreement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Stanley Black & Decker, Inc.)
Limitations on Liability. (a) With respect An Indemnifying Party shall only be obligated to indemnify any Claim Indemnified Persons under Section 8.01 above for (i) Losses that equal or exceed $150,000 (the “Deductible”) in the aggregate and after which time an Indemnified Person shall be indemnified for Losses in excess of the Deductible and (ii) any individual or series of related Losses that equal or exceed $150,000, which Losses shall be counted towards the Deductible (for the avoidance of doubt, Losses associated with any claim for which indemnification is sought under Section 1 unavailable hereunder solely by reason of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, limitation described in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or foregoing clause (ii) $1,200,000; provided that no such liability limits apply to subsection 1(bwill not be counted towards determining if the Deductible has been reached).
(2b) KEI and The aggregate amount of all Losses for which the Buyers Majority Owner shall be liable pursuant to Section 8.01 above shall not exceed $472,500 in the aggregate (the “Majority Owner Indemnity Cap”), provided, that, if the Losses are based on behalf Section 5.02, Section 5.03, or intentional fraud, the Majority Owner Indemnity Cap shall be increased to as much as the total amount of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damagesthe Merger Consideration received by the Majority Owner.
(3c) Anything Notwithstanding anything to the contrary contained in this Agreement notwithstandingArticle VIII, KEI the indemnification obligations of the Minority Owner shall be limited to Losses based on the Minority Owner Representations, and the Buyers agree that aggregate amount of all Losses for which the KEI Indemnified Parties Minority Owner shall be entitled liable pursuant to look solely Section 8.01 above shall not exceed $202,500 in the aggregate (the “Minority Owner Indemnity Cap”), provided, that, if the Losses are based on Section 5.02, Section 5.03, or intentional fraud, the Minority Owner Indemnity Cap shall be increased to as much as the total amount of the Merger Consideration received by the Minority Owner.
(d) EXCEPT FOR THIRD-PARTY CLAIMS UNDER ANY INDEMNITY PROVISION HEREIN, ABSENT FRAUD, IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(e) Notwithstanding anything to the contrary in this Agreement, Owners shall not be liable pursuant to Section 8.01 above for any Taxes assessed by any Governmental Authority by reason of adjustments to the Company’s cost of goods sold or inventories or the disallowance of any costs or expenses under Section 280E of the Code, nor for Losses incurred in any Tax audit, litigation or other proceeding resulting in any such assessment.
(f) Notwithstanding anything to the contrary in this Article VIII, and except for any acts or omissions by an Owner that constitutes fraud, violation of Law or willful misconduct or failure to pay Taxes required to be paid by the Company or the Owner, in the event an Owner becomes obligated to indemnify any Indemnified Persons for Losses, such Owner shall pay all or a portion of the amount of such Losses by surrendering in the following order, (i) a letter of credit in up to the Majority Owner Holdback Amount or the Minority Owner Holdback Amount, as applicable, (A) that amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree thatHightimes Common Stock received by such Owner, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit which shall be reduced valued at $1.00 per share, equal to $250,000 such Losses, if a Merger Event has not occurred, or (B) that amount of Merger Event Common Stock received by such Owner, which shall be valued at the average closing prices of Hightimes for the duration of five (5) trading days preceding the indemnification set forth in Section 1(b) hereofdate on which such Merger Event Common Stock was surrendered, equal to such Losses, if a Merger Event has occurred, and (ii) a letter the applicable balance of credit in the Merger Shares received by such Owner, up to the amount of $100,000 such Losses, subject, however, to the Majority Owner Indemnity Cap or the Minority Owner Indemnity Cap, as applicable (each applicable amount, a “Recourse Amount”). The source of recovery for payment Losses of Hightimes and its Indemnified Persons pursuant to Section 8.01 above against the Majority Owner or the Minority Owner shall be recourse against the Majority Owner Holdback Amount or the Minority Owner Holdback Amount, as applicable; provided that to the extent the Recourse Amount exceeds the amount available in the Majority Owner Holdback Amount or the Minority Owner Holdback Amount, as applicable, or if the Majority Owner Holdback Amount or the Minority Owner Holdback Amount, as applicable, has been released to such Owner after the six-month Holdback Period, or to the extent that any acts or omissions by KEI such Owner constitute intentional fraud, such source of recovery shall be the Merger Shares received by such Owner up to the extent of the deductible payable with respect to the R&W Insurance PolicyRecourse Amount.
(bg) With respect to any Claim asserted by any third party as Any Losses for indemnification under this Agreement shall be determined without duplication of recovery due to the matters set forth in Section 2 facts giving rise to such Losses constituting a breach of this Agreementmore than one representation, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreementwarranty, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Partiescovenant or agreement, or (ii) $8,000,000being indemnifiable pursuant to more than one clause of Section 8.01 above.
(2h) KEI The Owners shall not 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 or warranties of the Company and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive Majority Owner or consequential damages.
(3) Anything to the contrary Minority Owner Representations contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely if Hightimes had knowledge of such inaccuracy or breach prior to the R&W Insurance Policy with respect to claims brought Closing.
(i) Payments by an Indemnifying Party pursuant to Section 2 hereof, and, with 8.01 in respect to the amount of any deductible under such insurance policy, Loss shall be reduced by an amount equal to a letter of credit any Tax benefit realized or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewithbe realized as a result of such Loss by the Indemnified Person.
Appears in 1 contract
Limitations on Liability. (a) With The Purchaser Indemnified Parties’ right to indemnification under Section 5.2 shall be subject to the following limitations: (i) Purchaser shall not have the right to be indemnified pursuant to Section 5.2 unless and until Purchaser shall have incurred, on a cumulative basis following the Closing, Losses in excess of $2,025,000 (the “Deductible”) in which event the right to be indemnified shall apply to all Losses in excess of the amount of the Deductible, but subject to the other terms and limitations in this Agreement and (ii) the aggregate amount of Losses for which the Equityholders shall be obligated to provide indemnity under Section 5.2 shall not exceed the Indemnity Escrow Fund plus the right to offset against the Earnout Amount (if any) that becomes due and payable under this Agreement but has not yet been paid (the “Cap”); provided that any Losses resulting from a breach of the Fundamental Representations, from Section 5.2(c) and in the case of actual fraud shall not be subject to the Cap and will instead in no event exceed the aggregate amount of the Merger Consideration. In furtherance of the foregoing, the maximum aggregate amount of Losses for which the Purchaser Indemnified Parties as a group may be entitled to indemnification under this Agreement from a specific Equityholder shall in no event exceed the aggregate amount of cash proceeds actually received by such Equityholder in his/her/its capacity as an Equityholder pursuant to this Agreement plus such Equityholder’s allocable portion of the Earnout Amount, if any, which such allocable portion shall be subject to offset by Purchaser.
(b) Notwithstanding anything in this Agreement to the contrary, no breach of any representation, warranty or covenant contained in this Agreement shall give rise to any right on the part of Purchaser, after the consummation of the Transaction, to rescind this Agreement or the Transaction.
(c) Notwithstanding anything in this Agreement to the contrary, the amount of any Losses payable by the Equityholders in accordance with this Section 5 shall be net of any alternative insurance proceeds or indemnification proceeds reasonably available, directly or indirectly, to the Purchaser Indemnified Parties with respect to such Losses less the aggregate amount of all costs and expenses incurred by the Purchaser Indemnified Parties in connection with the recovery of such proceeds (including payment of deductibles and self-insured retention amounts) and less the present value of all insurance policy premium increases reasonably anticipated therefrom. If Purchaser actually receives any Claim insurance proceeds or indemnification proceeds after an indemnification payment is made to it by the Equityholders under this Section 5, Purchaser shall as promptly as practicable deliver to the Escrow Agent for deposit to the Escrow Fund the amount of such proceeds at such time or times as and to the extent that such proceeds are realized by Purchaser less the aggregate amount of all costs and expenses incurred by the Purchaser Indemnified Parties in connection with the recovery of such proceeds (including payment of deductibles and self-insured retention amounts) and less the present value of all insurance policy premium increases reasonably anticipated therefrom; provided, however, that if the Escrow Fund no longer exists, Purchaser shall (i) pay to the Paying Agent for further distribution to the Stockholders and Warrantholders such amount payable to the Stockholders and Warrantholders by means of a wire transfer of immediately available funds and (ii) pay to its payroll provider such amount payable to holders of Vested Options directly and instruct such payroll provider to deliver such payments to the holders of Vested Option in the next regularly scheduled payroll of the Surviving Corporation, each in accordance with such Equityholder’s Percentage as set forth on the Payment Schedule. Purchaser shall use commercially reasonable efforts to recover insurance proceeds or any other amounts from third parties (including, without limitation, under the R&W Insurance Policy), related to any Losses for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to this Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws5.
(d) Each KEI Any Loss for which a Purchaser Indemnified Party is entitled to indemnification under this Section 5 shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware be determined without duplication of any event or circumstance that could reasonably be expected to give recovery by reason of the state of facts giving rise to any such Loss constituting a breach of more than one representation, warranty or covenant.
(e) Any Losses that are indemnifiable or recoverable hereunder or of a party pursuant to this Section 5 shall be disregarded to the extent such Losses were specifically accrued in connection herewithwith the determination of the Closing Cash, Closing Indebtedness, Closing Working Capital, or Closing Company Transaction Expenses.
(f) For purposes of this Section 5, for any representation or warranty that is limited by the words “Material Adverse Effect,” “material” or by any similar term or limitation, the failure of such representation or warranty to be true and correct and the amount of Losses subject to indemnification hereunder shall be determined as if the words “Material Adverse Effect,” “material” or any similar term or limitation were not included therein.
(g) Notwithstanding anything in this Agreement to the contrary and other than to the extent awarded in connection with a Third Party Claim, Losses for which an Indemnified Party may seek indemnification under this Section 5 shall not include, and no party to this Agreement will be liable to another party for, punitive damages.
Appears in 1 contract
Limitations on Liability. The liability of RM for ------------------------ indemnification hereunder shall be limited to the sum of (a) With respect to any Claim for which indemnification is sought under Section 1 of this Agreement$14,883,690, the following provisions shall apply:
plus (1b) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery the Earn-Out Payment, if any, actually paid to the Sellers pursuant to Section 1.5 hereof, less (c) the Post-Closing Reduction, if any, actually paid to the Buyer in accordance with respect to any Claim arising under Section 1 of this Agreementthe U.S. Purchase Agreement (collectively, the "Indemnification Amount"); provided that the parties agree thataggregate amount -------- for which RM shall be obligated to indemnify the Buyer hereunder, upon and for which RM Inc. shall be obligated to indemnify the finalBuyer under the U.S. Purchase Agreement, non-appealable resolution shall not exceed the Indemnification Amount. Notwithstanding the foregoing provisions, however, RM will have indemnification liability under this Agreement only if the aggregate amount of Losses suffered by the Buyer under this Agreement and under the U.S. Purchase Agreement exceeds an amount equal to $350,000 (the "Indemnity Threshold"); provided, (A) that after the aggregate -------- amount of Losses suffered by the Buyer exceeds the Indemnity Threshold, all Losses suffered by the Buyer (including those included in reaching the Indemnity Threshold) shall be subject to RM's indemnification obligations; and (B) that such Indemnity Threshold shall not apply to any Seller's breach of any of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification representations and warranties set forth in Section 1(b) hereof2. The liability of the Buyer to RM for indemnification shall be limited to the Indemnification Amount; provided that the aggregate amount for which the Buyer shall be obligated to -------- indemnify RM hereunder, and (ii) a letter of credit in for which the amount of $100,000 for payment by KEI Buyer shall be obligated to indemnify RM Inc. under the U.S. Purchase Agreement, shall not exceed the Indemnification Amount. The indemnification obligations of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters parties set forth in Section 2 of this Agreement, Article 10 shall be the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess exclusive remedy of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy parties with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount for a breach of any deductible under such insurance policy, to a letter of credit representations or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable warranties hereunder or in connection herewiththe failure to perform obligations required to be performed hereunder.
Appears in 1 contract
Limitations on Liability. (a) With No liability shall attach to the Sellers in respect to of any Claim to the extent that:
10.4.1 the facts forming the basis of the Claim are disclosed in a Sub-Schedule to Schedule 1.1(d) as can be reasonably expected to be disclosed under the respective Sellers’ Statement (either directly or by reference to another Sub-Schedule);
10.4.2 the matter to which the Claim relates has been taken into account in the Effective Date Accounts by way of a specific provision (spezifische Rückstellung) as explicitly listed on a case by case basis in Schedule 10.4.2, liability (Verbindlichkeit), exceptional depreciation (außerplanmäßige Abschreibung) or depreciation to reflect lower market values (Abschreibung auf den niedrigeren beizulegenden Xxxx);
10.4.3 the amount of the Claim has been or could have reasonably been recovered in respect of the same Losses and Expenses from a third party (other than from advisors of the Buyers) or under an insurance policy in force on the date hereof (in which case only the Losses and Expenses resulting from an increase of premiums to the insurer (Rückstufungsschaden) and the costs for legal advisors shall be recoverable);
10.4.4 any of the Buyers has participated in causing (mitverursacht) such Claim within the meaning of section 254 (1) of the Civil Code or has failed to comply with its duty to mitigate damages pursuant to section 254 (2) of the Civil Code;
10.4.5 the matter to which indemnification is sought under Section 1 the Claim relates was actually known (positive Kenntnis) by the Buyers or any of its Representatives or DBAG or any of its Representatives on the date hereof. For the purpose of this Agreement, the following provisions Buyers (and any of its Representatives or DBAG and any of its Representatives) shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled deemed to pursue Claims have actual knowledge on the date hereof exclusively and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess only of the lesser of documents and information (i) contained and disclosed in the actual compensatory damages suffered virtual data room provided by such KEI Indemnified Partiesthe Sellers via IntraLinks up to and including March 14, 2011, two electronic copies of which will be set aside and will be preserved by the acting notary for a period of five (5) years after the Closing Date in accordance with a joint instruction letter attached hereto as Schedule 10.4.5, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment submitted by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their Representatives in written or electronic form to the Buyers prior to March 14, 2011 and in each case comprising all relevant facts pertaining to the matter to which the Claim relates. Section 442 Civil Code is hereby excluded;
10.4.6 the Claim results from, or is increased by, the passing of, or any change in, after the Closing Date, any Applicable Law; or
10.4.7 the procedures set forth in clause 9.3 were not observed and to the extent Sellers have been prejudiced by such non-compliance with the procedures set forth in clause 9.3 by the respective shareholdersBuyer. When calculating the amount of the liability of the Sellers under this Agreement, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or actual monetary advantages in connection herewithwith the relevant matter shall be taken into account based on the principles of crediting corresponding benefits (Vorteilsausgleich) as determined by German non-appealable court decisions excluding, however, not-incurred expenses (ersparte Aufwendungen) and any deduction resulting from an exchange of old assets by new assets.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Robbins & Myers, Inc.)
Limitations on Liability. (a) With respect to 14.4.1 Sellers shall not be liable under this Agreement for any Claim for which indemnification is sought under Section 1 breach of any warranty or representation contained in this Agreement, except to the following provisions extent that the aggregate amount of the Damages with respect to all such breaches of representations and warranties, MINUS the value of the favorable outcome of any of the matters referred to in Schedule 14.4.1 (to the extent not included in 1997 EBITDA), shall apply:
exceed an aggregate of BEF 100,000,000 (1) The KEI Indemnified Parties one hundred million). In no event shall collectively be entitled to pursue Claims and recover Losses as provided the aggregate liability of Sellers for any breach of warranty or representation in Section 1 of this Agreement, in the after deduction of an aggregate not in excess of BEF 100,000,000 (one hundred million) for such all breaches of representations and warranties, exceed 50% (fifty per cent) of the lesser Purchase Price; PROVIDED, HOWEVER, notwithstanding the foregoing, that Buyer shall be able to claim against Sellers for breaches of Paragraph 4.2. (Capitalization) up to an amount equal to the Purchase Price (without application of the deduction of BEF 100,000,000 set forth above), MINUS any amount paid to Buyer for other breaches, so that the total liability of Sellers shall never exceed the Purchase Price.
14.4.2 Sellers shall not be liable for any breach of any representation or warranty contained herein or made by Sellers under or in connection with this Agreement unless Buyer shall have given written notice to Sellers of the basis of their claim within 12 months after the Closing; PROVIDED, HOWEVER, notwithstanding the foregoing, that Buyer shall be able to make a claim against Sellers for breaches of Paragraph 4.2. (Capitalization) at any time.
14.4.3 Buyer shall not be liable for any breach of any representation or warranty contained herein or made by Buyer under or in connection with this Agreement unless Sellers shall have given written notice to Buyer of the basis of their claim within 12 months after the Closing.
14.4.4 When computing the amount to be paid by an Indemnitor hereunder, there shall be deducted an amount equal to any insurance proceeds or tax benefits received by the Indemnitee. Without prejudice to Paragraph 16.9, any indemnity payment pursuant to this Article 14 shall be treated for all tax purposes as an adjustment to the Purchase Price, subject to Buyer's right to recognize income as a consequence of the receipt or accrual of any indemnity payment.
14.4.5 The limitations set forth in Paragraphs 14.4.1, 14.4.2 and 14.4.3 are expressly made inapplicable to any liability for breach or non-fulfillment of any covenants or agreements made herein by the parties.
14.4.6 Nothing contained in this Article 14 shall relieve a party from any liability based on fraudulent or intentional misrepresentation, including, without limitation, the delivery by a party of any certificate which contains any statements known by the party at the time of such delivery to be untrue in any material respect.
14.4.7 No party to this Agreement shall be liable in respect of any breach of any representation or warranty in this Agreement if, and to the extent that, such breach (i) occurs as a result of any legislation or amendment to existing legislation not in force as of the actual compensatory damages suffered by such KEI Indemnified PartiesClosing Date, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b)occurs as a result of any voluntary act, omission, transaction or arrangement after the date hereof of the other party hereto.
(2) KEI and the Buyers on behalf 14.4.8 Sellers shall not be liable in respect of each any breach of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive representation or consequential damages.
(3) Anything to the contrary contained warranty in this Agreement notwithstandingif, KEI and to the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) extent that, a letter of credit provision has been made in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided Company Financial Statements in a manner that reduced the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyPurchase Price.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect to any Claim Neither Sellers nor Buyer is liable under this Article XI unless and until the aggregate Losses for which indemnification they, respectively, would otherwise be liable under this Agreement exceed Fifty Thousand Dollars ($50,000), at which point Sellers or Buyer, as applicable, is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in liable for the aggregate Losses and not just amounts in excess of the lesser of that sum; provided, however, that (isubject to Section 11.6(b)) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply maximum aggregate amount of all Losses for which Seller is obligated to subsection 1(b).
(2) KEI and indemnify the Buyers on behalf of each of such KEI Buyer Indemnified Parties hereby waive any right pursuant to recover incidentalthis Article XI shall not exceed Five Hundred Thousand Dollars ($500,000.00), indirect, special, exemplary, punitive or consequential damages.
(3) Anything referred to herein as the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy“Indemnification Cap”.
(b) With respect to any Claim asserted by any third party as Nothing in this Agreement will limit the Liability of a Party to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered other Party for fraud or willful misconduct by such KEI Indemnified Parties, or (ii) $8,000,000Party.
(2c) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive In no event will any right Party be liable under this Agreement to recover incidental, indirect, any other Party or other Person for special, exemplaryincidental, punitive or consequential damages.
damages (3including lost profits) Anything in connection with any claims, losses, damages or injuries arising out of the conduct of such party pursuant to the contrary contained in this Agreement notwithstandingregardless of whether the nonperforming party was advised of the possibility of such damages or not. The exclusion of special, KEI and incidental, punitive or consequential damages as set forth in the Buyers agree preceding sentence will not apply to any such damages recovered by third parties against a Buyer Indemnified Party or a Seller Indemnified Party, as the case may be, in connection with Losses that the KEI Indemnified Parties shall may be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible indemnified under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsthis Agreement.
(d) Each KEI This Article XI shall be the sole and exclusive remedy of the Buyer Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise Parties and the Seller Indemnified Parties for monetary damages with respect to any Losses that are indemnifiable and all claims relating to this Agreement, any Transaction Document, or recoverable hereunder the transactions contemplated by this Agreement or in connection herewithany Transaction Document.
Appears in 1 contract
Samples: Asset Sale Agreement (Data443 Risk Mitigation, Inc.)
Limitations on Liability. The obligations and liability of any Indemnifying Party under this Agreement shall be subject to the following limitations:
(a) With an Indemnifying Party shall have no liability (subject to any insurance deductibles payable) in connection with any Damages to the extent that such Damages are reimbursed or confirmed as reimbursable with certainty to the Indemnified Party by the Indemnified Party’s insurer;
(b) an Indemnifying Party shall have no liability in connection with any Damages unless the Indemnified Party provides such Indemnifying Party with written notice of such Damages, including, to the extent known, full particulars of the basis therefor, within 25 months of the Closing Date; except for a written notice of such Damages:
(i) involving willful misconduct or fraud in which case there shall be no time limitation;
(ii) arising out of an Environmental Claim in which case shall be done within 61 months of the Closing Date; and
(iii) arising out of or related to Taxes or Tax Returns for any fiscal year in which case shall be done no later than the expiration of the period (if any) during which an assessment , reassessment or other form of recognized document assessing liability for tax, interest or penalties under applicable tax legislation could be issued (or, in the case of such assessment or reassessment, until the issues in dispute have been fully resolved);
(c) an Indemnifying Party shall have no liability in connection with any Damages until the aggregate of such Damages exceeds CDN$100,000 and, upon the aggregate of such Damages exceeding CDN$100,000, such Indemnifying Party shall be required to indemnify in respect of the amount of all Damages; provided that, the total liability of all Indemnifying Parties in connection with any Damages shall not, in the aggregate, exceed all payments made by Buyer pursuant to Sections 1.2 and 1.3, except that such limitation shall not apply to any Damages resulting from a breach of the representation and warranty provided by Sellers under Section 2.25 and shall not apply to fraud committed by any Indemnifying Party;
(d) each Indemnified Party hereby agrees that, with respect to any Claim loss for which it is entitled to recovery from an Indemnifying Party, it shall use reasonable commercial efforts to mitigate or minimize such loss;
(e) the rights of indemnification is sought contained in this Article 11 shall be the sole and exclusive remedy of the Indemnified Parties for Damages arising out of this Agreement or any of the Definitive Agreements or documents made or delivered pursuant thereto except for the any payments required by Sellers under Section 1 12.2 hereof or any rights to injunctive relief as provided under Section 14.7;
(f) the Indemnifying Party shall not have any obligation to make any payment with respect to any Damages for third party claims, unless and only to the extent an Indemnified Party has made a payment in respect of such Damages; provided, that due notice under subsection (d) above preserves any claims under this Agreement; and
(g) for purposes of determining the liability and indemnity obligations under this Agreement, the following provisions Damages shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled limited to pursue Claims actual damages, and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess none of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 consequential, punitive, special or similar damages, including damages for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policylost profit.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect The right of Purchaser to any Claim for which indemnification is sought under be indemnified from the Escrow Fund pursuant to this Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties 6 shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery sole and exclusive remedy with respect to any Claim arising under Section 1 breach of any representation, warranty or covenant of the Company or any other indemnification matter set forth in, or any other breach by the Company of, this Agreement, provided, that the Escrow Fund shall not be Purchaser’s sole remedy for any claims for breaches of Fundamental Representations or claims based on Fraud or Willful Misconduct. For the avoidance of doubt, in no event shall Purchaser or any Affiliate of Purchaser or the Company be entitled to recover directly from either Seller Party or any other Person with respect to any indemnification claim pursuant to this Section 6; provided that claims for breaches of Fundamental Representations shall not exceed the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyAcquisition Consideration.
(b) With respect to Without limiting the effect of any Claim asserted by any third party as to the matters other limitation set forth in this Section 2 of 6, the indemnification provided for in Section 6.2 shall not apply, and Purchaser shall not be entitled to exercise any indemnification rights under this Agreement, except to the following provisions shall apply:
extent any Indemnification Claim where the Damages related to that Indemnification Claim (1or series of Indemnification Claims arising from the same or substantially similar facts or circumstances) The KEI Indemnified Parties shall collectively exceeds $[***] (the “Minimum Claim Amount”). If the amount of Damages for an individual Indemnification Claim (or series of Indemnification Claims arising from the same or substantially similar facts or circumstances) exceeds the Minimum Claim Amount, then the Purchaser shall, subject to the other limitations set forth in this Agreement, be entitled to pursue Claims and recover Losses as be indemnified from the Escrow Fund against all Damages for such Indemnification Claim, regardless of the Minimum Claim Amount.
(c) Without limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section 2 of 6.2 shall not apply, and Purchaser shall not be entitled to exercise any indemnification rights under this Agreement, in except to the extent that the aggregate amount of the Damages against which Purchaser would otherwise be entitled to be indemnified under Section 6.2 [*** ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. exceeds $[***] (the “Deductible”), provided that the Deductible shall not apply to [***]. If the aggregate amount of such Damages exceeds the Deductible, then Purchaser shall, subject to the other limitations set forth in this Agreement, be entitled to be indemnified from the Escrow Fund only against the portion of such Damages in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsDeductible.
(d) Each KEI Indemnified Party Purchaser shall use Commercially Reasonable Efforts commercially reasonable steps to mitigate all Losses any Damages upon becoming aware of any event or circumstance that could which would reasonably be expected to to, or does, give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewiththereto.
Appears in 1 contract
Limitations on Liability. (a) With respect to any Claim Except as provided for which indemnification is sought under in Section 1 of this Agreement9.2(a)(ii), the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess right of the lesser of (i) Parent Indemnitees to be indemnified from the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply Escrow Fund pursuant to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Article IX shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery sole and exclusive remedy with respect to any Claim arising under Section 1 breach of any representation or warranty of the Company contained in, or any other breach by the Company of, this Agreement; . Except as provided that for in Section 9.2(a)(ii), neither the parties agree thatEquityholders’ Representative nor any current or former stockholder, upon the finaldirector, non-appealable resolution officer, employee, Affiliate or advisor of the Accountant ClaimCompany, such letter of credit its Subsidiaries or of any Equityholder shall be reduced have any Liability of any nature to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable Parent Indemnitees with respect to the R&W Insurance Policyany breach of any representation or warranty contained in, or any other breach of, this Agreement.
(b) With The right of the Equityholders to be indemnified pursuant to this Article IX shall be the sole and exclusive remedy with respect to any Claim asserted breach of any representation or warranty of Parent or Merger Sub contained in, or any other breach by Parent or Merger Sub of, this Agreement. No current or former stockholder, director, officer, employee, Affiliate or advisor of Parent or of Merger Sub shall have any third party as Liability of any nature to any Equityholder or any Affiliate of any Equityholder with respect to any breach of any representation or warranty contained in, or any other breach of, this Agreement.
(c) Without limiting the effect of any other limitation contained in this Article IX, the indemnification provided for in Section 9.2 shall not apply except to the matters set forth in Section 2 of this Agreement, extent that the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively aggregate Damages against which any Indemnitee would otherwise be entitled to pursue Claims and recover Losses as provided in Section 2 of be indemnified under this AgreementArticle IX exceeds Four Million Dollars ($4,000,000.00), in which event Indemnitee shall, subject to the aggregate not other limitations contained herein, be entitled to be indemnified only against the portion of such Damages in excess of such amount. For purposes of this Section, the lesser Parent Indemnitees, on the one hand, and the Equityholders, on the other hand, shall be considered one “Indemnitee”. Nothing in this Section 9.3(c) will limit any remedy any of the Parent Indemnitees or any of the Equityholders may have against any Person for any applicable Special Matter.
(d) Without limiting the effect of any other limitation contained in this Article IX, for purposes of computing the amount of any Damages incurred by any Indemnitee (the Parent Indemnitees, on the one hand, and the Equityholders, on the other hand, being considered one “Indemnitee” for purposes of this Section) under this Article IX, there shall be deducted (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect an amount equal to the amount of any deductible Tax benefit actually realized by Parent or any of its Affiliates in connection with such Damages or any of the circumstances giving rise thereto; and (ii) an amount equal to the amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements received or reasonably expected to be realized by Parent or any of its Affiliates in connection with such Damages or any of the circumstances giving rise thereto (it being understood that Indemnitee and any of its Affiliates shall use commercially reasonable efforts to obtain such proceeds, payments or reimbursements prior to seeking indemnification under such insurance this Article IX). The calculation of Damages shall not include losses arising because of a change after Closing in Law or accounting policy, . To the extent that a claim for indemnification by the Parent Indemnitees hereunder relates to a letter Liability incurred by the Company and there is an accrual on the Company Financial Statements as of credit or bond the Balance Sheet Date in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warrantiesrespect of such Liability, then the determination of Damages in respect of such claim shall be net of such accrual.
(ce) Except as expressly provided Without limiting the effect of any other limitation contained in Section 3(a) and (b) above, KEIthis Article IX, the Buyers Parent Indemnitees shall not be entitled to indemnification under this Article IX to the extent that such indemnifiable event actually gave rise to an adjustment to the Per Share Merger Consideration made following the Closing pursuant to Section 2.8.
(f) Nothing in this Section 9.3 shall limit any remedy the Parent Indemnitees or any of the Equityholders may have against any Person for actual fraud involving a knowing and intentional misrepresentation of a fact, or a knowing and intentional omission of a fact, material to the KEI Indemnified Parties may not proceed against Ridgewoodtransactions contemplated by this Agreement, made or omitted with the Sellers intent of inducing any other party hereto to enter into this Agreement and upon which such other party has relied (as opposed to any fraud claim based on constructive knowledge or their respective shareholders, directors, officers, managers, members, employees negligent misrepresentation or agents other than on grounds constituting fraud or violation of securities similar theory) under applicable tort laws.
(dg) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon Upon any Indemnitee becoming aware of any event or circumstance that could reasonably claim as to which indemnification may be expected sought by such Indemnitee pursuant to give rise this Article IX, such Indemnitee shall utilize reasonable efforts, consistent with normal practices and policies and good commercial practice, to mitigate such Damages.
(h) Notwithstanding anything to the contrary in this Agreement, the Parent Indemnitees shall not be entitled to indemnification pursuant to this Article IX with respect to any Losses that are indemnifiable or recoverable hereunder or in connection herewithTax attributes (including, without limitation, tax basis, tax credits and net operating losses) of any Group Company.
Appears in 1 contract
Samples: Merger Agreement (Brown & Brown Inc)
Limitations on Liability. (a) With Unless otherwise expressly stated in this Agreement, the provisions of Sections 6.1 and 6.2 above provide each Party’s sole remedies for any failure by the other Party to perform its respective obligations under this Agreement prior to or at Closing, but will not limit any rights or remedies that either Party may have for a breach or default by the other Party after Closing with respect to any Claim for which indemnification is sought under Section 1 those provisions of this Agreement, or those provisions of the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled Closing Documents, that are expressly stated to pursue Claims and recover Losses as provided in Section 1 of this Agreementsurvive Closing. However, in no event will either Party be liable to the aggregate not in excess of the lesser of (i) the actual compensatory other Party for any consequential, indirect, special or punitive damages suffered by such KEI Indemnified Partiesa Party as a result of any failure, breach or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI default, either before or after Closing, by the other Party under this Agreement or any of the Closing Documents, and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive Party expressly waives any right to recover incidentalany such consequential, indirect, special, exemplary, special or punitive or consequential damages.
(3) Anything damages caused to such Party by the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policyother Party.
(b) With Notwithstanding anything to the contrary set forth in this Agreement or any of the Closing Documents, (i) Seller will have no liability whatsoever with respect to any Claims suffered or incurred by, asserted or assessed against, or imposed upon Buyer or any Buyer Party under or with respect to this Agreement, the Property, or any Closing Document, except to the extent (and only to the extent) that such Claims exceed One Hundred Thousand and 00/100 Dollars ($100,000.00) (the “Threshold Amount”), in which event the entire amount of such Claims shall be recoverable from the first dollar (and not just to the extent they exceed the Threshold Amount); and (ii) in no event will the total aggregate liability of Seller and any Seller Parties for any or all Claims with respect to the entirety of the Property and the transactions contemplated by this Agreement and the Closing Documents exceed Nine Million Three Hundred Seventy-Nine Thousand Five Hundred and No/100 Dollars ($9,379,500.00) (the “Maximum Amount”). Buyer shall not make any such Claims or deliver any such Claim asserted Notice unless Buyer in good faith believes the Claims would exceed the Threshold Amount, and Buyer shall not seek or receive for such Claims any remedies or awards that individually or in the aggregate would exceed the Maximum Amount. Notwithstanding anything contained in this Section 6.3(b) to the contrary, (X) the Threshold Amount and the Maximum Amount shall not apply to any Claims for a breach by any third party as to the matters set forth in Section 2 Seller Entity of any of its obligations under Sections 1.6, 5.4, 5.7, 5.9 and 7.5 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, any amounts owing or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or paid in connection herewithwith any such Claims shall not be considered for purposes of determining whether the Threshold Amount or Maximum Amount has been exceeded.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Limitations on Liability. Notwithstanding anything to the contrary contained herein, Seller shall not have any obligation under Section 9.2(a)(i)(y) unless and until (ai) With the Losses incurred by the Buyer Indemnitees with respect to any Claim matter or series of related matters for which indemnification is sought to be provided under Section 1 9.2(a)(i)(y) exceed $50,000, in which case Seller shall be liable for all Losses with respect to such matter or matters, including the first $50,000 (subject to all other applicable requirements and limitations herein, including Sections 9.3(b) and 9.3(c)) (such Losses, “Qualifying Losses”), and (ii) the aggregate of all Qualifying Losses exceed $750,000 (the “Deductible”), in which case Seller shall be liable under Section 9.2(a)(i)(y) for only those Qualifying Losses in excess of the Deductible (subject to all other applicable requirements and limitations contained herein). Notwithstanding anything to the contrary contained herein, in no event shall the aggregate liability of Seller under Section 9.2(a)(i)(y) exceed $16,500,000 (the “Cap”). Notwithstanding anything to the contrary contained herein, in no event shall the aggregate liability of Seller under this Agreement, Agreement exceed the following provisions Purchase Price. Each Indemnified Party shall apply:
(1) The KEI use reasonable efforts to mitigate all Losses for which such Indemnified Parties shall collectively Party is or may be entitled to pursue Claims indemnification hereunder. If any Buyer Indemnitee actually receives insurance proceeds or indemnity, contribution or similar payments in respect of Losses under this Article IX prior to being indemnified with respect to such Losses under this Article IX, the payment under this Article IX with respect to such Losses shall be reduced by the amount of such insurance proceeds or indemnity, contribution or similar payments, less reasonable out-of-pocket attorney’s fees and recover Losses as provided other expenses or increased premiums incurred in Section 1 of this Agreementconnection with such recovery. If Buyer Indemnitee receives such insurance proceeds or indemnity, contribution or similar payments described in the aggregate not in excess preceding sentence after being indemnified with respect to some or all of such Losses, Buyer Indemnitee shall pay to Seller the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each amount of such KEI Indemnified Parties hereby waive any right to recover incidentalinsurance proceeds or indemnity, indirectcontribution or similar payment, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained less reasonable out-of-pocket attorney’s fees and other expenses incurred in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for connection with such recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the aggregate amount of $100,000 for payment paid by KEI of the deductible payable Seller to any Buyer Indemnitee with respect to the R&W Insurance Policy.
such Losses. The amount of any and all Losses under Section 9.2(a) and Section 9.2(b) shall be determined net of any Tax benefits (bdetermined on a “with” and “without” basis) With respect to any Claim asserted actually received in cash (whether by actual receipt of cash Tax refund or an actual reduction of cash Taxes due and owing) by any third party as to Indemnified Party seeking indemnification hereunder arising from the matters set forth in Section 2 deductibility against Taxes of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover any such Losses as provided in Section 2 of this Agreement, in the aggregate not in excess year of the lesser of (i) Loss or the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
immediately following two (2) KEI years (such determination of the amount and timing of any such Tax benefit to be determined at the Buyers on behalf reasonable discretion of each of the Indemnified Person in good faith). If an Indemnified Party receives any such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to Tax benefit described in the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy preceding sentence after receiving an indemnification payment with respect to claims brought pursuant to a Loss, but within the two (2) year period described above in this Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI9.3(d), the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts pay an amount equal to mitigate all Losses upon becoming aware such Tax benefit to the Indemnifying Party within ten (10) days of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewithsuch Tax benefit being realized.
Appears in 1 contract
Limitations on Liability. Notwithstanding any other provision of this Agreement:
(a) With respect Seller shall not have any obligation to any Claim for which indemnify the Purchaser Indemnified Parties unless the aggregate amount of Losses subject to indemnification pursuant to Section 8.2(a) shall exceed 1% of the Purchase Price (the “Basket Amount”), and once such amount is sought under exceeded, Seller shall indemnify the Purchaser Indemnified Parties for, and shall be liable for, the full amount of all Losses subject to indemnification pursuant to Section 1 of 8.2(a) (subject to the other limitations on indemnification expressly set forth in this Agreement), without reduction for the Basket Amount. In no event shall the aggregate liability of Seller pursuant to Section 8.2(a) for Losses incurred or suffered by the Purchaser Indemnified Parties exceed 25% of the Purchase Price (the “Indemnification Cap”). Notwithstanding the foregoing, the following provisions Indemnification Cap shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter any liability of credit in the amount of $1,200,000 for recovery with respect Seller pursuant to any Claim arising under Section 1 of this Agreement; provided that the parties agree thatSections 8.2(b), upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter any liability of credit in the amount Seller pursuant to Section 8.2(c), (iii) any liability of $100,000 for payment by KEI Seller under Section 8.9 or (iv) any liability of the deductible payable with respect to the R&W Insurance PolicySeller under Article 9.
(b) With Subject to Section 8.9, the sole and exclusive liability and responsibility of Seller to the Purchaser Indemnified Parties under or in connection with this Agreement or the transactions contemplated hereby (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation) and the sole and exclusive remedy of the Purchaser Indemnified Parties with respect to any Claim asserted by any third party of the foregoing, shall be as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims Article 8 and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000Article 9.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Subject to Section 3(a) and (b) above, KEI8.9, the Buyers sole and exclusive liability and responsibility of Purchaser to the KEI Seller Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder under or in connection herewithwith this Agreement or the transactions contemplated hereby (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation) and the sole and exclusive remedy of the Seller Indemnified Parties with respect to any of the foregoing, shall be as set forth in Article 8 and Article 9.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Residential Capital, LLC)
Limitations on Liability. (a) With The Seller shall not be required to indemnify or hold harmless the Purchaser Indemnified Parties for any claim for indemnification for any Loss (or series of Losses related to the same underlying facts, events or circumstances) under Section 10.1 (other than Section 10.1(b) and Section 10.1(e), and with respect to breaches or inaccuracies in the Fundamental Representations) to the extent the aggregate liability of the Seller to the Purchaser Indemnified Parties thereunder exceeds USD [***]; furthermore, the Seller shall not be required to indemnify or hold harmless the Purchaser Indemnified Parties for any Claim claim for which indemnification is sought for any Loss (or series of Losses related to the same underlying facts, events or circumstances) under Section 1 of this Agreement, 10.1(g) unless and until the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Purchaser Indemnified Parties, as a group, shall have paid, incurred, suffered or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and sustained at least USD [***] in Losses in the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidentalaggregate, indirectin which case, special, exemplary, punitive or consequential damages.
(3) Anything subject to the contrary contained in this Agreement notwithstandingother applicable limitations herein, KEI and the Buyers agree that the KEI Purchaser Indemnified Parties shall be entitled to look solely recover all such Losses paid, incurred, suffered or sustained thereby from “dollar one;” and the Seller shall not be required to indemnify or hold harmless the Purchaser Indemnified Parties for any claim for indemnification for any Loss (ior series of Losses related to the same underlying facts, events or circumstances) a letter in respect of credit breaches of or inaccuracies in representations and warranties set forth in Section 4.5 (Financial Statements), to the extent the aggregate liability of the Seller to the Purchaser Indemnified Parties therefor or thereunder exceeds USD [***]. The Purchaser shall not be required to indemnify or hold harmless the Seller Indemnified Parties for any claim for indemnification under this Agreement for Losses in excess of the Purchase Price. Notwithstanding anything to the contrary herein, no Party shall be required to indemnify or hold harmless the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, for any claim for indemnification for any Loss (or series of Losses related to the same underlying facts, events or circumstances) arising under this Agreement (other than in the event of Fraud or Willful Misconduct) to the extent the aggregate liability of such Party to the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, hereunder exceeds the Purchase Price.
(b) Notwithstanding anything in this Agreement to the contrary, for purposes of determining the amount of $1,200,000 for recovery Losses arising from a breach of or inaccuracy in any representation or warranty in this Agreement, each representation and warranty in this Agreement (and Schedules and Exhibits hereto) will be read without regard and without giving effect to the terms or phrases “material,” “in all material respects,” “in any material respect,” “material adverse change,” “material adverse effect,” “Material Adverse Effect,” “which would not reasonably be expected to be material to the Company,” “except where the failure to so qualify has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect” or similar words or phrases contained in such representation or warranty (as if such words or phrases were deleted from such representation and warranty).
(c) The Purchaser shall be deemed to have waived on behalf of itself and all Purchaser Indemnified Parties their respective rights, and the Purchaser Indemnified Parties shall have no recourse, under this Agreement (including under Article 7 and Section 8.1) against the Seller or its Affiliates with respect to any Claim arising Known Breach except as set forth under Section 1 of this Agreement; provided that 10.1(c), (d) or (f). Notwithstanding the parties agree thatforegoing, upon the final, non-appealable resolution of Purchaser shall continue to be entitled to any and all rights under the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, R&W Insurance Policy and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable its sole recourse with respect to any Known Breach shall be against the R&W Insurance Policy.
(bd) With Notwithstanding anything to contrary in this Agreement, nothing in this Agreement will limit the Liability of a Party to another Party for Fraud or Willful Misconduct.
(e) All indemnification payments made hereunder shall be treated by all parties as adjustments to the Purchase Price for Tax purposes unless otherwise required by Law.
(f) If an Indemnified Party’s claim under Section 10.1 may be brought under different sections of Section 10.1, then such Indemnified Party shall have the right to bring such claim under any applicable section it chooses in accordance with Section 10.1; provided, however, that in no event shall any Indemnified Party be entitled to double recovery of the same amount and type of Losses with respect to any Claim asserted by any third party as to the matters set forth particular incident, fact or event which resulted in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable recoverable under Section 10.1 regardless of whether there were breaches of more than one representation, warranty, covenant or recoverable hereunder or in connection herewithagreement.
Appears in 1 contract
Limitations on Liability. (a) With respect The obligation of the Seller to indemnify the Purchaser and any Claim for which indemnification is sought Purchaser Indemnified Person under Section 1 9.1(a) of this Agreement, Agreement for Damages is subject to the following provisions shall applyfollowing:
(1i) The KEI each of the representations and warranties made by a Party is deemed to have been made without the inclusion of or reference to limitations or qualifications as to materiality such as the word “material”, the phrase “in all material respects” or words or phrases of similar meaning and intent for purposes of calculating the value of claims pursuant to this Section 9.8;
(ii) the Seller shall have no liability in this Agreement and no Damages may be recovered from the Seller unless the claims of the Purchaser, the Corporation and any Purchaser Indemnified Parties Person for indemnification under Section 9.1(a) exceed in the aggregate, $275,000, in which case the Seller shall collectively be entitled required to pursue Claims and recover Losses as provided in Section 1 pay or be liable for the amount of Damages exceeding $275,000; and
(iii) Notwithstanding any other provision of this AgreementAgreement (but subject to Section 9.8(b)), the liability of the Seller in respect of claims of the Purchaser and any Purchaser Indemnified Person for Damages under Section 9.1(a) of this Agreement shall not exceed, in the aggregate not in excess of the lesser of aggregate, (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply 18,000,000 for claims for indemnification for matters not connected to subsection 1(b).
(2) KEI and the Buyers on behalf a breach of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, Fundamental Warranty and (ii) the Purchase Price for claims for indemnification for matters connected to a letter breach of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policya Fundamental Warranty.
(b) With respect to any Claim asserted by any third party as to the matters The limitations set forth in Section 2 of this Agreement, the following provisions 9.8(a) shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled not apply to pursue Claims and recover Losses as provided in Section 2 of this Agreement, any claim for indemnification in the aggregate not in excess event of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Partiesfraud, intentional misrepresentation or (ii) $8,000,000wilful breach or misconduct.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided The liability of the Purchaser in Section 3(arespect of claims by the Seller or any Seller Indemnified Person for Damages shall not exceed, in the aggregate, (i) $18,000,000 for claims for indemnification for matters other than a breach of a Purchaser Fundamental Warranty and (bii) above, KEI, the Buyers and the KEI Indemnified Parties Purchase Price (as may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation be adjusted hereunder) for a breach of securities lawsa Purchaser Fundamental Warranty.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Share Purchase Agreement (Enthusiast Gaming Holdings Inc. / Canada)
Limitations on Liability. (a) With respect 12.1 The Vendor shall not be liable for any Claim:
12.1.1 if, and to the extent that, the fact, matter, circumstance or event giving rise to such Claim has been Disclosed, provided that this clause 12.1.1 shall not apply to any Claim made under the Tax Covenant;
12.1.2 unless written notice is given of such claim specifying (in reasonable detail and to the extent reasonably practicable) the matter which gives rise to the Claim, the nature of the Claim and the amount claimed in respect thereof (detailing the Purchaser's calculation of the loss thereby alleged to have been suffered by it) from or on behalf of the Purchaser in accordance with the provisions of clause 22 (Notices):
12.1.2.1 in the case of a Non-Tax Claim on or before the expiration of 24 months from Completion; or
12.1.2.2 in the case of any Tax Claim not later than 6 and 30 days from the end of the accounting period in which Completion occurs.
12.2 The aggregate liability of the Vendor:
12.2.1 in respect of all Claims shall not exceed an amount equal to £1.00; and
12.2.2 in respect of this Agreement and all claims relating thereto (save for which indemnification Claims) shall not exceed an amount equal to the Xxxxxxxxx Project Bonus Amounts that become due and payable, and in the event that the Xxxxxxxxx Project Bonus Amounts do not become payable shall be nil.
12.3 In accordance with clause 9.5 the Purchaser’s only remedy for a Settled Claim or a Substantiated Claim is sought under Section 1 of set-off against the Xxxxxxxxx Project Bonus Amounts.
12.4 Notwithstanding any other provision in this Agreement, the following provisions Purchaser shall apply:
(1) The KEI Indemnified Parties shall collectively not be entitled to pursue Claims recover compensation or to make a claim under this Agreement or any other agreement in relation to the Project in respect of any loss, costs, expenses, damages or otherwise that the Purchaser has incurred to the extent that the Purchaser or the Company have already been actually compensated for such sums in the EPC Contract or the O&M Contract (and recover Losses vice versa) or under the Purchaser’s Insurance Policy.
12.5 A breach of the Warranties in respect of any matter which is capable of remedy shall not entitle the Purchaser to compensation unless the Vendor is given notice of such a breach or Claim in accordance with clause 12.1.2 above and such breach or the subject matter of such Claim is not completely remedied to the Purchaser’s reasonable satisfaction within 30 Business Days after the date on which such notice is served on the Vendor. In the event the subject matter of such Claim is so remedied, the Purchaser shall not be entitled to compensation for any such breach or Claim.
12.6 Subject to clause 12.7, all and any liability of the Vendor in respect of any claim under the Warranties (other than the Tax Warranties) notified to it in accordance with clause
12.1 above shall (if such claim has not previously been satisfied, settled or withdrawn) be extinguished on the expiry of 6 months from the date of such notification of the such claim (or in the case of a claim where the liability is contingent, on expiry of 6 months from the date on which the claim ceased to be contingent) unless the Purchaser shall within such period have issued and validly served on the Vendor proceedings in respect of such claim.
12.7 The Vendor shall not be liable in respect of any claim under the Warranties (other than the Tax Warranties) to the extent that it arises or is increased as provided a result of any change in Section 1 law (or change in the interpretation of law) or in administrative practice of any government, governmental department, agency or regulatory body occurring after the date of this AgreementAgreement (whether or not the change purports to be effective retrospectively in whole or in part).
12.8 The Vendor shall not be liable in respect of a claim under the Warranties (other than the Tax Warranties) to the extent that the claim is attributable (in whole or in part) to:
12.8.1 any voluntary act, omission or transaction carried out by or at the request of or with the consent of the Purchaser or any of its Affiliates or any of their successors in title or assigns on or after Completion other than any such act, omission or transaction carried out in the aggregate not in excess ordinary and proper course of business; or
12.8.2 anything expressly provided to be done or omitted to be done pursuant to this Agreement; or
12.8.3 anything done by or on behalf of the lesser Company before Completion at the request of the Purchaser and outside the ordinary course of business for the Company.
12.9 The Vendor shall not be liable in respect of any claim under the Warranties to the extent that the claim relates to a Covered Loss save where reasonable efforts to recover such Covered Loss are unsuccessful against the relevant person after 6 months. In the event that the Vendor pays the Purchaser in respect of the claim under the Warranties and a Covered Loss is subsequently recovered by the Purchaser in full from a third party during a period of up to 12 months after the Vendor has paid the Purchaser, the Purchaser shall repay to the Vendor the amount actually recovered from the Vendor (less all costs, charges and expenses incurred by the Purchaser or the Company in recovering that sum). The existence of a Covered Loss shall not prevent the Purchaser from giving notice of a Warranty Claim pursuant to clause 12.1.2 and the period contains in clause 12.5 shall be extended by 6 months for any Warranty Claim which relates to a Covered Loss.
12.10 If the Vendor pays to or for the benefit of the Purchaser or the Company an amount in respect of any claim under the Warranties or the Tax Covenant and the Company, the Purchaser, or any member of the Purchaser's Group subsequently receives from any other person any payment in respect of the matter giving rise to such claim, the Purchaser shall thereupon pay to the Vendor the lower of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything amount equal to the contrary contained payment received (less all costs, charges and expenses incurred by the Purchaser or the Company in this Agreement notwithstanding, KEI and the Buyers agree recovering that the KEI Indemnified Parties shall be entitled to look solely to (isum) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment paid by KEI the Vendor in that respect (except to any extent that the liability of the deductible payable with Vendor in respect of the claim under the Warranties or the Tax Covenant was reduced to take account of such payment or benefit and after deducting the costs incurred in achieving any such recovery) but only to the R&W Insurance Policyextent that such amount exceeds the loss suffered by the Purchaser or the Company in relation of the Claim.
(b) With 12.11 The Vendor shall not be liable in respect of any claim under the Warranties to the extent that it relates to a liability which is contingent or not capable of being quantified unless and until the liability ceases to be contingent or becomes capable of being quantified, as the case may be.
12.12 The Purchaser acknowledges that it is subject to its common law duty of mitigation in relation to a Warranty Claim.
12.13 The provisions of this clause 12 shall not apply in respect of any Claim asserted if it relates to, or the ability of the Purchaser to make the claim is delayed by, any fraud or dishonesty by the Vendor, or any third party as Affiliate of the Vendor (excluding for the avoidance of doubt the Company after Completion) or any officer or employee or former officer or employee of any of them.
12.14 The Vendor shall not be liable in respect of any Claim to the matters set forth in Section 2 extent that the subject of this Agreement, the following provisions Claim has been or is made good or is otherwise compensated for without cost to the Company or the Purchaser's Group.
12.15 The Purchaser shall apply:
(1) The KEI Indemnified Parties shall collectively not be entitled to pursue Claims and recover Losses as provided damages or otherwise obtain reimbursement or restitution more than once in Section 2 respect of this Agreement, the same loss.
12.16 The Vendor shall not be liable in respect of a Tax Claim to the extent:
12.16.1 provision or reserve for such liability was made in the aggregate Agreed Adjustment Statement;
12.16.2 such liability arises in the ordinary course of business of the Company after the Locked Box Date and on or before the date of Completion (provided this exclusion shall not apply to any liability under clause 17.1.2;
12.16.3 it would not have arisen but for a change after Completion in the accounting bases on which the Company values its assets (other than a change made in order to comply with UK GAAP); or
12.16.4 it would not have arisen but for a voluntary act, omission or transaction carried out by the Purchaser or the Company or any member of the Purchaser’s Group after Completion, being an act, omission or transaction which:
12.16.4.1 was not required by law;
12.16.4.2 is not in excess the ordinary course of business of the lesser of Company (i) as carried out at Completion);
12.16.4.3 the actual compensatory damages suffered by such KEI Indemnified PartiesCompany was not legally committed to do under a commitment that existed on or before Completion;
12.16.4.4 the Purchaser was aware, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right ought reasonably to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming have been aware of any event or circumstance that could reasonably be expected to would give rise to the Liability for Taxation in question; or
12.16.5 it arises or is increased as a result of any Losses increase in the rate of Taxation or any change in the law in each case coming into force after Completion with retrospective effect or otherwise or any change in any practice published by any Taxation Authority coming into force after Completion with retrospective effect or otherwise or to the extent that are indemnifiable such claim arises or recoverable hereunder is increased by an increase in rates of Taxation after Completion with retrospective effect or otherwise; or
12.16.6 the liability was discharged by the Company on or before Completion;
12.16.7 payment has already been made in connection herewithrespect of such liability under this Agreement or payment has been made from the Vendor to the Purchaser or the Company pursuant to a statutory right of recovery at no cost to the Purchaser or the Company;
12.16.8 such liability would not have arisen but for any failure or delay by the Purchaser or the Company in paying over to any Taxation Authority any payment previously made by the Vendor in respect of the liability in question under this Agreement;
12.16.9 such liability arises as a result of any amendment or withdrawal of any claim, election or return submitted by the Company prior to Completion, unless such amendment or withdrawal is required solely to correct an error made by the Company before Completion or is otherwise required by law; or
12.16.10 such liability is lawfully reduced or eliminated by the use of a Relief other than a Post Completion Relief or by the use of any VAT Credit referred to in clause 17.1.2.
Appears in 1 contract
Samples: Share Purchase Agreement
Limitations on Liability. (a) With respect to Notwithstanding any Claim for which indemnification is sought under Section 1 provision of this AgreementAgreement to the contrary, after the following provisions shall apply:
(1) The KEI Closing Date, a Purchaser Indemnified Parties shall collectively Party will not be entitled to pursue Claims indemnification pursuant to subparts (i) and (vii) of Section 8.2(a) until the aggregate of all the amounts due to Purchaser Group exceeds One Million Seventy-Five Thousand Dollars ($1,075,000) (the “Deductible”), in which case Purchaser Indemnified Party will be entitled to recover Losses as provided in Section 1 of this Agreement, in suffered only to the aggregate not extent in excess of the lesser Deductible; provided, however, that any Losses incurred by any Purchaser Indemnified Party as a result of any of the following shall not be subject to the Deductible: (i) the actual compensatory damages suffered by such KEI Indemnified PartiesCompany’s or an Owner’s breach of, or any inaccuracy contained in, the Fundamental Representations or (ii) fraud, willful breach or intentional misrepresentation on the part of an Owner or the Company.
(b) Except for (i) claims based on actual fraud or Willful Breach on the part of the Company (committed on or before the Closing) or an Owner or (ii) a breach of, or inaccuracy contained in the Fundamental Representations, the maximum amount of Losses Purchaser Group can recover pursuant to subparts (i) and (vii) of Section 8.2(a) is limited to One Million Seventy-Five Thousand Dollars ($1,200,000; provided that no such liability limits apply 1,075,000) (the “Indemnification Limit”). The maximum amount of Losses Purchaser Group can recover pursuant to subsection 1(bsubpart (vi) of Section 8.2(a) is limited to Five Million Dollars ($5,000,000).
(2c) KEI Except for claims based on actual fraud on the part of the Company (committed on or before the Closing) or an Owner, the maximum amount of Losses Purchaser Group can recover from an Owner pursuant to Section 8.2(a) is limited to such Owner’s Pro Rata Share. For avoidance of doubt, the Deductible and Indemnification Limit do not apply to claims for indemnification pursuant to subparts (ii), (iii) or (iv) of Section 8.2(a), and the Buyers on behalf of each of such KEI limitations contained in this Section 8.5 shall in no way limit the amounts Purchaser Indemnified Parties hereby waive any right to may recover incidental, indirect, special, exemplary, punitive or consequential damagesunder the R&W Insurance Policy.
(3d) Anything Purchaser shall, and shall cause the Company to, in good faith, use commercially reasonable efforts to seek recovery, at its or their own expense, of all insurance proceeds from insurers (including, without limitation, under the R&W Insurance Policy) with respect to all Losses with respect to which any Purchaser Indemnified Party makes a claim for indemnification under this ARTICLE VIII; provided, however, that Purchaser shall not be required to, and it shall not be required to cause the Company to, initiate or pursue any legal action to make any such recovery and provided further that in no event shall Purchaser’s obligations under this sentence act as a bar to bringing an indemnification claim against the Owners. To the extent that Purchaser or the Company receives any amount under insurance coverage with respect to a matter for which a Purchaser Indemnified Party has previously obtained payment in indemnification under this ARTICLE VIII, Purchaser shall, as soon as reasonably practicable after receipt of such insurance proceeds, pay and reimburse to the contrary contained Owners (in this Agreement notwithstandingaccordance with their respective Pro Rata Share), KEI and for any prior indemnification payment up to the Buyers agree that amount of the KEI Indemnified Parties shall be entitled to look solely to insurance proceeds, but less (i) a letter the cost and expense of credit in pursuing such insurance recovery, (ii) the deductible associated therewith and (iii) the amount of $1,200,000 for all retro-premium obligations and reasonably anticipated premium increases resulting from such recovery with respect to any Claim arising (other than premiums under Section 1 the R&W Insurance Policy). For purposes of this Agreement; provided that Section 8.5(d), the parties agree that, upon term insurance proceeds shall in all respects include the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect proceeds received under or pursuant to the R&W Insurance Policy.
(be) With The indemnification rights provided in this ARTICLE VIII constitute the sole and exclusive remedy of the parties following Closing with respect to any Claim asserted by any third party as dispute arising out of or related to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of other than (i) claims based on actual fraud, (ii) the actual compensatory damages suffered remedy of specific performance provided by such KEI Indemnified PartiesSection 9.14 and other equitable remedies, or (iiiii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to as provided by Section 2 hereof, and, 1.3 with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsNet Adjustment Amount.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Amn Healthcare Services Inc)
Limitations on Liability. (a) With respect Any calculation of a Loss under this Section 12 shall, in each case, give full effect to any Claim for which indemnification is sought under Section 1 and all insurance proceeds actually received (net of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses any increase in premiums payable or taxes payable as provided in Section 1 of this Agreement, in the aggregate not in excess a result of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each receipt of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3proceeds) Anything to the contrary contained applicable indemnified party in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter respect of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyLoss.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be Each Person entitled to pursue Claims and recover indemnification hereunder or otherwise to reimbursement for Losses as provided in Section 2 of connection with the transactions contemplated by this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered Agreement shall use commercially reasonable efforts to mitigate any Losses incurred or sustained by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses indemnified party upon becoming aware of any event or circumstance that could would reasonably be expected to give rise thereto.
(c) Notwithstanding anything herein to the contrary, in no event shall the liability of (i) Trust I for indemnification hereunder for breach of any or all representations or warranties exceed, in the aggregate, the Olinda Purchase Price, or (ii) the Providence Sellers for indemnification hereunder for breach of any or all representations or warranties exceed, in the aggregate, the Providence Purchase Price.
(d) Notwithstanding anything herein to the contrary, in no event (whether or not this Agreement has been terminated) shall Buyer, the Buyer Parties (including, without limitation, the Sponsors and their respective former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents) either individually or in the aggregate, be subject to any liability in excess of the Purchase Price in the aggregate for all losses or damages relating to or arising out of this Agreement or the transactions contemplated by this Agreement, including breaches by Buyer of any representations, warranties, covenants or agreements contained in this Agreement. The Sellers understand and acknowledge that their sole remedy against Buyer for breaches of this Agreement shall be money damages (as opposed to specific performance) subject to the limitations set forth herein.
(e) Notwithstanding anything herein to the contrary, in no event shall a breach of the representations and warranties contained in Section 3.6 hereof give rise to any obligation on the part of any Seller to indemnify a Buyer Party except to reimburse such Buyer Party for any Losses that are indemnifiable or recoverable hereunder or in connection herewithsuffered by such Buyer Party as a result of a Third Party Claim arising from such breach.
Appears in 1 contract
Samples: Interest Purchase Agreement (Ridgewood Electric Power Trust Iii)
Limitations on Liability. (a) With respect to Notwithstanding any Claim for which indemnification is sought under Section 1 other provision of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising and all claims (whether or not by a third party pursuant to Section 6.3 and whether or not for breach or nonperformance of contract, negligence, indemnification, or any other theory of liability) in no event shall the Service Provider's aggregate liability to the Service Recipient or the Service Recipient's Indemnified Parties exceed the aggregate payments made to the Service Provider by the Service Recipient under Section 1 of this Agreement; provided Agreement except that the parties agree that, upon the final, non-appealable resolution this limitation shall not apply to liabilities caused solely by actions of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyService Provider constituting gross negligence or willful misconduct.
(b) With respect to Notwithstanding any Claim asserted by any third party as to the matters set forth in Section 2 other provision of this Agreement, and with respect to any and all claims (whether for breach or nonperformance of contract, negligence, indemnification, or any other theory of liability), neither the following provisions Service Provider nor the Service Recipient shall apply:
be liable to make any payment to the other in respect of any individual claim or series of related claims for losses in an amount which is less than $50,000 per claim or series of related claims unless and until the aggregate amount of such claims exceeds, in the aggregate, $200,000 (1) The KEI Indemnified Parties the "Deductible"), in which event the Party requesting payment shall collectively be entitled to pursue Claims recover all losses resulting from or arising out of such claims only to the extent the aggregate amount of such losses exceeds $200,000. However, claims for losses of more than $50,000 per claim or series of related claims shall not be subject to this limitation and recover Losses as provided in Section 2 shall not be counted toward satisfaction of the Deductible.
(c) Notwithstanding any other provision of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to any and all claims brought pursuant to Section 2 hereof(whether for breach or nonperformance of contract, andnegligence, with respect indemnification, or any other theory of liability), in no event shall any damages or losses payable under this Agreement include, and no Party shall be liable to the amount other Parties for, any punitive, incidental, consequential, indirect or special damages (including lost profits, lost revenues and loss of business), whether foreseeable or not, whether occasioned by any failure to perform or the breach of any deductible representation, warranty, covenant or other obligation under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. this Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsfor any cause whatsoever.
(d) Each KEI Indemnified Except as otherwise expressly provided herein, none of the remedies set forth in this Agreement is intended to be exclusive, and each Party shall use Commercially Reasonable Efforts to mitigate have all Losses upon becoming aware other remedies now or hereafter existing at law or in equity or by statute or otherwise, and the election of any event one or circumstance that could reasonably be expected more remedies shall not constitute a waiver of the right to give rise to any Losses that are indemnifiable pursue other available remedies.
(e) The provisions of this Section 6.5 shall survive expiration or recoverable hereunder or in connection herewithearlier termination of this Agreement.
Appears in 1 contract
Samples: Transition Services Agreement (Cloud Peak Energy Inc.)
Limitations on Liability. (a) With The Indemnified Party’s indemnification rights with respect to breaches of the representations and warranties of the Indemnifying Party, other than the representations and warranties set forth in Section 3.1, Section 3.2(a), Section 3.6(a), Section 3.9, Section 3.12, Section 3.16, Section 3.20, Section 3.24, Section 4.1, Section 4.3, Section 4.4 and Section 4.5 (the “Fundamental Representations”) will survive the Closing but will terminate and expire, and will cease to be of any force or effect, on the date that is eighteen (18) months following the Closing Date (the “Expiration Date”), and all Liability of the Indemnifying Party with respect to such representations and warranties will thereupon be extinguished; provided, however, that if, prior to the Expiration Date in the case of representations and warranties other than the Fundamental Representations, the Indemnified Party shall have duly delivered to the Indemnifying Party, in conformity with all of the applicable procedures set forth in Section 6.4, a Claim Notice setting forth a claim for indemnification based upon a breach by the Indemnifying Party of any of such representations or warranties, then the specific claim set forth in such Claim Notice will survive (and will not be extinguished upon) the Expiration Date. Any other claim for indemnification by any party under this Article VI may be asserted until expiration of the applicable statute of limitations under which a Third Party could assert a claim against the Indemnified Party plus 60 days.
(b) Other than with respect to the Fundamental Representations, the Indemnifying Party will not be required to indemnify the Indemnified Party with respect to any Claim for which indemnification is sought under Section 1 breach by the Indemnifying Party of any of the representations and warranties of the Indemnifying Party set forth in this Agreement, except to the following provisions shall apply:extent that the cumulative amount of the Damages actually incurred by the Indemnified Party as a result of all such breaches actually exceeds one and 25/100 percent (1.25%) of the Purchase Price (the “Threshold Amount”); after which time the entire amount of such Damages occurring hereunder will be indemnifiable, including the Threshold Amount, subject to the limitations set forth in Section 6.1 and in clause (c) below.
(1c) The KEI Other than with respect to the Fundamental Representations, the total amount of the payments that the Indemnifying Party can be required to make with respect to any breach by the Indemnifying Party of any of the representations and warranties of the Indemnifying Party set forth in this Agreement will be limited in the aggregate to a maximum of fifteen percent (15%) of the Purchase Price (the “Cap”), and the Indemnifying Party’s cumulative Liability will in no event exceed such amount. In no event shall the Threshold and Cap apply to any claims by any Indemnified Parties Party for indemnification pursuant to (i) Section 6.1(b), Section 6.1(c), Section 6.1(d), Section 6.2(b), Section 6.2(c), Section 6.2(d) or (ii) Damages any Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by fraud or intentional misrepresentation. In addition, prior to and in conjunction with seeking indemnification, an Indemnified Party shall collectively use commercially reasonable efforts to mitigate the amount of Damages for which it may be entitled to pursue Claims indemnification hereunder.
(d) Notwithstanding anything contained herein or in the Transaction Documents to the contrary, the aggregate liability of the Sellers under the Transaction Documents or relating to the Business, the Excluded Liabilities and/or the transactions contemplated by the Transaction Documents, shall never exceed the Purchase Price.
(e) Each Member’s obligation to indemnify the Purchaser Indemnified Parties pursuant to this Article VI shall be limited to each such Member's allocable portion of the Purchase Price actually received by such Member, and recover Losses as provided in Section 1 each such Member shall be liable to the Purchaser Indemnified Party for a portion of this Agreementeach Claim only up to its allocable portion of the Purchase Price actually received relative to the Purchase Price received by all Members (except with respect to Sections 3.12(b)-(d), in which the aggregate not Member shall indemnify the Purchaser Indemnified Parties for the entire amount of such Damages, subject to the other limitations contained herein). Notwithstanding the above, each Seller and Langsenkamp shall be jointly and severally liable for each Minority Member's allocable portion (based on the portion of the Purchase Price actually received by such Minority Member relative to the Purchase Price received by all Members) of any indemnification obligation under this Article VI (except with respect to Sections 3.12(b)-(d), in excess which each Minority Member shall indemnify the Purchaser Indemnified Parties for the entire amount of such Damages, subject to the other limitations contained herein).
(f) The amount of any Damages that are subject to indemnification under this Article VI shall be calculated net of the amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements actually received by the Indemnified Party or any Affiliate of the Indemnified Party in connection with such Damages (less the costs incurred by the Indemnified Party and its Affiliates in collecting such amounts, including any resulting increases in insurance premiums). In the event that an insurance recovery is made by the Indemnified Party or any Affiliate of the Indemnified Party with respect to any Damages for which the Indemnified Party has been indemnified hereunder, the Indemnified Party shall promptly pay to the Indemnifying Party, a sum equal to the lesser of (i) the actual compensatory damages suffered by amount of such KEI Indemnified Parties, insurance proceeds recoveries or (ii) $1,200,000; provided that the actual amount of the indemnification payment previously paid with respect to such Damages..
(g) To the extent the Indemnifying Party makes or is required to make any indemnification payment to the Indemnified Party, no such liability limits apply right of subrogation against the Indemnifying Party will accrue hereunder to subsection 1(b)or for the benefit of the Indemnifying Party or any Third Party.
(2h) KEI Except with respect to specific performance for the breach of any Restricted Party of the restrictive covenants contained in Section 5.7, the right to indemnification under this Article VI, subject to all of the terms, conditions and limitations hereof, shall constitute the Buyers on behalf sole and exclusive right and remedy available to any party hereto for any actual or threatened breach of the representations, warranties, covenants and obligations set forth in this Agreement, and none of the parties hereto shall initiate or maintain any legal action at law or in equity against any other party hereto which is directly or indirectly related to any breach or threatened breach of the representations, warranties, covenants or obligations set forth in this Agreement, except in the case of intentional misrepresentation or fraud. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of such KEI Indemnified Parties hereby waive their respective Representatives arising under or based upon any right Law, except pursuant to recover incidental, indirect, special, exemplary, punitive or consequential damagesthe indemnification provisions set forth in this Article VI.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in Neither the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification condition set forth in Section 1(b2.8(e) hereof, and (ii) a letter of credit in nor the amount of $100,000 for payment by KEI receipt of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to opinion described therein shall adversely affect any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Purchaser Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right Party’s rights to recover incidental, indirect, special, exemplary, punitive any Damages under this Article VI or consequential damagesotherwise.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect Notwithstanding anything to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided contrary in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI event a Contributee Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).Party has a claim for indemnification under Section 9.2 hereof:
(2a) KEI Neither a Contributee Indemnified Party nor a Contributor Indemnified Party will be entitled to indemnity under Section 9.2(a)(i), Section 9.2(a)(iii) or Section 9.2(b)(i) of this Agreement with respect to claims for Losses until the amount for any individual claim for Losses exceeds Fifty Thousand Dollars ($50,000) (the “Individual Basket Amount”) and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidentalaggregate amount for all claims for Losses that exceed the Individual Basket Amount exceeds Five Hundred Thousand Dollars ($500,000) (the “Aggregate Basket Amount”), indirectand thereafter, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Contributee Indemnified Parties shall be entitled to look solely to (i) a letter of credit in indemnity for the aggregate amount of $1,200,000 all individual claims for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution Losses in excess of the Accountant Claim, Individual Basket Amount applicable to each of such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policyindividual claims.
(b) With In the event a Contributee Indemnified Party is entitled to indemnity under Section 9.2(a)(i) (for breach of representations and warranties which survive one (1) year or less after the Closing Date) and Section 9.2(a)(iii), any such claim may be satisfied solely and exclusively against the Escrow Deposit. Therefore, the maximum aggregate liability of Contributors under Section 9.2(a)(i) (for breach of representations and warranties which survive one (1) year or less after the Closing Date) and Section 9.2(a)(iii) of this Agreement shall not exceed the Escrow Deposit, and Contributee Indemnified Parties shall have no further right to indemnity thereunder at such time as all cash or Contributee Units have been disbursed from the Escrow Account. Under no circumstance shall a Contributee Indemnified Party be entitled to recover an indemnity claim arising under Section 9.2(a)(i) (for breach of representations and warranties which survive one (year) or less after the Closing Date) and Section 9.2(a)(iii) of this Agreement directly against Contributors. In addition, in all circumstances, a Contributee Indemnified Party must first look to the Escrow Account with respect to an indemnity claim, including those arising under Section 9.2(a)(i) (for representations and warranties which survive longer than one (1) year after the Closing Date) and Section 9.2(a)(ii) of this Agreement.
(c) The amount of any Claim asserted Losses subject to indemnification under this ARTICLE IX shall be reduced or reimbursed, as the case may be, by any third party as to insurance proceeds, third party recoveries less the matters set forth in Section 2 of this Agreementcosts expended for such recoveries. Each Party shall, the following provisions and shall apply:
(1) The KEI cause their respective Indemnified Parties shall collectively be entitled to, use Reasonable Efforts to pursue Claims collect any amounts available under such insurance coverage and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by from such KEI other third party alleged to have responsibility. If a Contributee Indemnified Parties, Party receives an amount under insurance coverage or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of from such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy third party with respect to claims brought pursuant Losses that were the subject of indemnification under Section 9.2 at any time subsequent to Section 2 hereofindemnification provided thereunder, and, with respect to the amount of any deductible under then such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Contributee Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewithpromptly reimburse Contributors.
Appears in 1 contract
Samples: Partnership Interests Contribution Agreement (Eagle Rock Energy Partners L P)
Limitations on Liability. (a) With respect Notwithstanding any other provision of this Agreement to any Claim the contrary, but subject to Section 8.3(b), the aggregate amount of all Losses for which indemnification is sought under Section 1 the Seller shall be liable pursuant to this Agreement (other than for (i) any breaches of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess any of the lesser covenants or agreements of the Seller in this Agreement required to be performed or otherwise satisfied following the Closing and (ii) any Knowing and Intentional Breach of Sections 5.1(b) or 5.1(c)) shall not exceed an amount equal to (i) the actual compensatory damages suffered Purchase Price (excluding the Ampreloxetine Purchase Price and the Outer Years Royalty) received by such KEI Indemnified Parties, or the Seller less (ii) $1,200,000; provided that the aggregate amount of TBPH Royalty Share received by the Purchaser from and after the third (3rd) anniversary of the Closing Date. No party hereto shall be liable for any consequential, punitive, special or incidental damages under this Section 8 (and no such liability limits apply to subsection 1(b).
(2claim for indemnification hereunder shall be asserted) KEI and the Buyers on behalf as a result of each any breach or violation of any covenant or agreement of such KEI Indemnified Parties hereby waive any right party (including under this Section 8) in or pursuant to recover incidentalthis Agreement. Notwithstanding the foregoing, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Purchaser shall be entitled to look solely make indemnification claims, in accordance with the procedures set forth in this Section 8, for any portion of the TRC Royalty that the Purchaser was entitled to (i) a letter of credit in the amount of $1,200,000 for recovery with respect receive but did not receive due to any Claim arising indemnifiable events under Section 1 this Agreement as Losses, and such portion of the TRC Royalty shall not be deemed consequential, punitive, special or incidental damages for any purpose of this Agreement; provided that . Notwithstanding the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreementforegoing, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Seller shall be entitled to look solely to make indemnification claims, in accordance with the R&W Insurance Policy with respect to claims brought pursuant to procedures set forth in this Section 2 hereof8, and, with respect to the amount for any portion of any deductible under such insurance policy, Milestone Payment and Outer Years Royalty that the Seller was entitled to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may receive but did not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise receive due to any Losses that are indemnifiable events under this Agreement as Losses, and such portion of such Milestone Payment shall not be deemed consequential, punitive, special or recoverable hereunder or in connection herewithincidental damages for any purpose of this Agreement.
Appears in 1 contract
Samples: Equity Purchase and Funding Agreement (Theravance Biopharma, Inc.)
Limitations on Liability. (a) With respect to To the extent any Claim for which indemnification is sought under Section 1 Damages arise out of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely relate to (i) a letter breach or inaccuracy of credit any Sellers’ Fundamental Representation, (ii) a breach or inaccuracy of any Acquired Entities’ Fundamental Representation, or (iii) a breach or inaccuracy of the representations and warranties contained in Section 4.43 or the indemnification obligations of the Sellers pursuant to Section 10.2(c), the Sellers shall have no liability under this Agreement until the aggregate amount of $1,200,000 for recovery all such Damages incurred by the Purchaser Indemnified Persons exceeds the Deductible. Once the total of all such Damages exceeds the Deductible, the Purchaser Indemnified Persons shall be entitled to make an indemnity claim with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution Damages in excess of the Accountant Claim, Deductible (and only for such letter excess) up to a maximum amount not to exceed (A) the Purchase Price in the case of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b(i) hereof, and (ii) a letter of credit and (B) $50,000,000 in the amount case of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy(iii).
(b) With respect to any Claim asserted by any third party as to the matters set forth in claim for Damages under Section 2 of this Agreement10.2(b), the following provisions such claim shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of made (i) first, against the actual compensatory damages suffered by such KEI Indemnified PartiesInsurance Policies, or and (ii) $8,000,000.
(2) KEI and second, against the Buyers on behalf Sellers directly, solely if the Insurance Policies are insufficient to cover the full amount of each the Damages or if the Damages are not covered by the Insurance Policies. If the Insurance Policies are insufficient to cover the full amount of such KEI the Damages or if the Damages are not covered by the Insurance Policies, the Purchaser Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Persons shall be entitled to look solely to the R&W Insurance Policy make an indemnity claim with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount any such Damages in excess of any deductible under amount not covered by the Insurance Policies (and only for such insurance policy, excess) up to a letter of credit or bond in form reasonably satisfactory maximum amount not to KEI. Agreement Regarding Representations and Warrantiesexceed $50,000,000.
(c) Except as expressly provided No Seller shall have any liability with respect to any claim for Damages under Section 10.2(b) if the Insurance Policies are not in Section 3(a) full force and (b) above, KEI, effect at the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsrelevant time.
(d) Each KEI Indemnified An Indemnifying Party shall use Commercially Reasonable Efforts not be liable to mitigate all Losses upon becoming aware any Indemnified Person for any special, indirect, consequential, punitive or aggravated Damages; except, in each case, to the extent necessary to reimburse the Indemnified Person for judgments actually awarded to third parties in respect of such types of Damages.
(e) For purposes of this Agreement, any inaccuracy in or breach of any event representation or circumstance that could reasonably warranty, and the calculation of the resulting Damages, shall be expected to give rise determined without regard to any Losses that are indemnifiable materiality or recoverable hereunder other similar qualification contained in or otherwise applicable to such representation or warranty.
(f) Neither the Deductible nor the limitations of liability set out in connection herewiththis Section 10.8 shall apply to any indemnity claims made by a Purchaser Indemnified Person in the case of Fraud.
Appears in 1 contract
Limitations on Liability. Notwithstanding anything to the contrary herein:
(a) With respect Seller will not be liable to any Claim indemnify an Indemnified Party for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, any Damages pursuant to Section 9.02(a)(i) (other than for a breach of Section 3.22 (Education Regulatory Matters)) or (ii) Damages pursuant to Section 9.02(a)(ii) solely as it relates to a breach of Section 5.01, in either case, unless the aggregate amount of Damages actually incurred by the Buyer Indemnitees for such breach and all other breaches otherwise subject to indemnification hereunder exceeds $1,200,00075,000 (the “Deductible”), and then only to the extent such aggregate Damages exceed such amount; provided that no such liability limits provided, that, the Deductible will not apply to subsection 1(bindemnification for Damages arising out of or resulting from (A) any breach of Section 3.14 (Taxes) or Section 3.23 (Accounts Receivable).
, (2B) KEI and any breach of any Fundamental Representation (and, for the Buyers avoidance of doubt, Damages indemnifiable on behalf account of each any breach of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to Fundamental Representation will not be counted towards the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution calculation of the Accountant Claim, such letter of credit shall be reduced to $250,000 Deductible for the duration of the indemnification set forth in Section 1(bany other breaches) hereof, and or (iiC) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 9.02(a)(iii), and Section 9.02(a)(iv);
(b) Seller will not be liable to indemnify an Indemnified Party for any Damages pursuant to Section 9.02(a)(i) solely as it relates to a breach of Section 3.22 (Education Regulatory Matters) unless the aggregate amount of Damages actually incurred by the Buyer Indemnitees for such breach and all other breaches otherwise subject to indemnification hereunder exceeds $250,000;
(c) in no event will Seller’s aggregate Liability arising out of or relating to Section 9.02(a)(i), exceed $40,000,000, less any amount by which the XXX XX is drawn on under Section 5.08 (the “Representation Cap”); provided, that, the Representation Cap will not apply to indemnification for Damages arising out of or resulting from (i) any breach of Section 3.14 (Taxes) or Section 3.22 (Education Regulatory Matters), (ii) any Fundamental Representation, or (iii) the matters set forth in in Section 9.02(a)(iii) and Section 9.02(a)(iv), or in the event that a court of competent jurisdiction finally concludes that Seller willfully and knowingly committed fraud against Buyer, with the specific intent to deceive and mislead Buyer regarding the representations and warranties made in Article III of this Agreement;
(d) in no event will Seller’s aggregate Liability arising out of or relating to Section 9.02(a) exceed $200,000,000, less any amount by which the XXX XX is drawn on under Section 5.08 (the “Cap”);
(e) no Buyer Indemnitee will be entitled to indemnification under Section 6.06(a) or this Article IX to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Final Net Working Capital or to the extent such Buyer Indemnitee has otherwise actually been compensated with respect thereto pursuant to the post-Closing adjustment contemplated by Section 2.05(b);
(f) in no event will Seller be liable under Section 9.02(a) or Section 6.06 for any Damages arising from an action taken or not taken by Seller at the written request of or with the written consent of Buyer and in no event will Seller be liable under Section 9.02(a)(i), Section 9.02(a)(ii) or Section 9.02(a)(iv) for any Damages or Liability for which Seller has agreed to indemnify a Buyer Indemnified Party pursuant to Section 9.02(a)(iii);
(g) Buyer Indemnitees will not have a right to assert claims for indemnification under any provision of this Agreement (including Section 6.06) for Damages to the extent that such Damages arise out of actions taken (or omitted to be taken) by Buyer, the DVU Transferred Entities or any Buyer Indemnitee after the Closing Date;
(h) the amount of any Damages for which an Indemnified Party claims indemnification under this Agreement will be reduced by the amount of (i) any insurance proceeds actually received from third party insurers with respect to such Damages; (ii) any Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of such Damages in the Tax period in which the indemnification payment is made or in a prior Tax period (provided that any such Tax benefit is actually realized in the same year as the incurrence or payment of such Damages), and (iii) any indemnification, contribution, offset or reimbursement payments actually received from third parties with respect to such Damages, in each case of clauses (i) through (iii) above, net of any reasonable costs associated with recovery of such amounts; provided, that, such Indemnified Party will use commercially reasonable efforts to obtain recoveries from insurers, including title insurers, and other third parties in respect of this Section 9.04(h). If an Indemnified Party (A) actually receives insurance proceeds from third party insurers with respect to such Damages, (B) actually realizes any Tax benefit in a later year, or (C) actually receives indemnification, contribution, offset or reimbursement payments from third parties with respect to such Damages, in each case, at any time subsequent to any indemnification payment pursuant to Section 6.06 or this Article IX, then such Indemnified Party will promptly reimburse the applicable Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to such amount actually received (or, in the case of a Tax benefit, actually realized) by such Indemnified Party;
(i) each Indemnified Party will have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, including incurring the minimum costs necessary to remedy any breach that gives rise to such Damages;
(j) in the event an Indemnified Party will recover Damages in respect of a claim of indemnification under this Article IX or Section 6.06, no other Indemnified Party will be entitled to recover the same Damages in respect of a claim for indemnification;
(k) notwithstanding anything provided under applicable Law, no Party will have any Liability (including, without limitation, under Article III, Article VI or this Article IX) for, and Damages will not include, any punitive, consequential, special or indirect Damages, including, lost profits, loss in value or any damages that are based on a multiple of earnings, or any other Damages that are not the probable or reasonably foreseeable result of a breach of this Agreement, the following provisions shall apply:except for punitive damages awarded in respect of any Third Party Claim;
(1l) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything notwithstanding anything to the contrary contained in this Agreement notwithstandingherein, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI no Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewithrecover more than once for the same Liability; and
(m) THE RIGHTS OF INDEMNIFICATION SET FORTH IN THIS Article IX WILL BE ENFORCEABLE REGARDLESS OF WHETHER ANY PERSON (INCLUDING ANY INDEMNIFYING PARTY) ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE INDEMNIFIED PARTY OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED ON THE INDEMNIFIED PARTY.
Appears in 1 contract
Samples: Stock Purchase Agreement (Adtalem Global Education Inc.)
Limitations on Liability. (a) With respect to The Vendor shall have no liability for any single Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims unless and recover Losses as provided in Section 1 of this Agreement, in until the aggregate not in excess amount of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery Losses with respect to any such Claim arising under Section 1 exceeds Five Thousand Dollars ($5,000). The amount of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, all such letter of credit Losses shall be reduced to $250,000 for taken into account in determining whether the duration aggregate of all Losses suffered or incurred by the indemnification Purchaser exceeds the threshold amount set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policysubsection 10.5(b).
(b) With respect to The Vendor shall have no liability for any single Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims for indemnification unless and recover Losses as provided in Section 2 of this Agreement, in until the aggregate not in excess amount of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy all Losses with respect to claims brought pursuant to Section 2 hereof, and, with respect to all Claims exceeds Ten Thousand Dollars ($10,000). Once the aggregate amount of any deductible under all Losses exceeds Ten Thousand Dollars ($10,000), the Vendor shall be fully liable for all Losses, both below and above such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warrantiesthreshold amount.
(c) Except as expressly provided in Section 3(a) The maximum aggregate liability of the Vendor under this Agreement for all Claims and (b) above, KEI, Losses suffered and incurred by any and all of the Buyers Purchaser and the KEI its Indemnified Parties may shall not proceed against Ridgewoodexceed the value of the Purchase Price, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsas adjusted pursuant to this Agreement.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts reasonable efforts to mitigate all any Losses upon becoming aware for which the other Party is required to indemnify it hereunder.
(e) If an Indemnified Party’s Losses at any time subsequent to the making of an indemnity payment are reduced by any net tax benefit or recovery related thereto, the amount of such reduction shall promptly be repaid by the Indemnified Party to the Indemnifying Party.
(f) In respect of a Claim regarding any misrepresentation or breach of any event warranty made by the Vendor in this Agreement, or circumstance that could reasonably any other Closing Document or any failure by the Vendor to observe or perform any covenant or obligation in this Agreement or any other Closing Document, the amount the Purchaser will be expected entitled to give rise recover for such Claim is, in addition to the other limitations set out in this Section 10.5, limited to one dollar ($1.00) if notice of the Claim hereunder is given after the expiration of the period ending three (3) years after the Closing Date, provided that:
(i) the amount the Purchaser is entitled to recover for a Claim in respect of the representations and warranties contained in subsections 7.1(a), 7.1(b), 7.1(c), 7.1(d), 7.1(e), 7.1(f), 7.1(q), 7.1(aa) and 7.1(ee), or in respect of a representation or warranty based on fraud, including a Claim in respect of a misrepresentation made or fraud committed in filing a Tax Return or supplying information for the purposes of any Applicable Laws in respect of Taxes, shall not be subject to the limit set forth in this subsection 10.5(f); and
(ii) the amount the Purchaser is entitled to recover for a Claim in respect of representations and warranties contained in subsections 3.4 and 7.1(i), other than a Claim in respect of a misrepresentation made or fraud committed in filing a Tax Return or supplying information for the purposes of any applicable Tax Legislation to which paragraph 10.5(f)(i) applies, is limited to one dollar ($1.00) only if the Claim is brought after the expiration of ninety (90) days after the later of:
(A) the last date on which an assessment or reassessment for Taxes under the Tax Act or under any other Applicable Laws imposing Taxes can be made with respect to any Losses taxation year which is relevant in determining any liability under this Agreement with respect to Tax matters; and
(B) the date on which the period for an appeal from an assessment, reassessment or other determination of those Taxes, or decision of a court or other competent Tribunal in respect thereof may be filed has expired and that are indemnifiable appeal has not been filed.
(g) In respect of a Claim regarding any misrepresentation or recoverable breach of any warranty made by the Purchaser in this Agreement or any other Closing Document or any failure by the Purchaser to observe or perform any covenant or obligation in this Agreement or any other Closing Document, the amount the Vendor will be entitled to recover for such Claim is, in addition to the other limitations set out in this Section 10.5, limited to one dollar ($1.00) if notice of the Claim hereunder or in connection herewithis given after the expiration of the period ending three (3) years after the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Waste2Energy Holdings, Inc.)
Limitations on Liability. (a) With Disclosure
12.1 The Vendor shall not be liable in respect of a Claim to any the extent that the facts and circumstances giving rise to the Claim are fairly disclosed in the Disclosure Letter.
12.2 The Vendor’s liability in respect of a Claim for breach of the Warranties shall be limited by the provisions of this clause 12. Without prejudice to this clause 12, for the avoidance of doubt such liability of the Vendor shall not be limited as a result of the disclosure of additional facts and circumstances after the date of this Agreement or matters of which indemnification is sought under Section 1 the Purchaser became aware (or ought reasonably to have become aware) after the date of this Agreement.
12.3 The Vendor shall not be liable for any General Claim unless the Purchaser gives to the Vendor written notice containing a summary of the nature of the General Claim as far as is known to the Purchaser, on or before the date being the date of the expiry of the third month following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 the end of this Agreementthe financial year of the Purchaser ending 31 December 2006, except for those matters having a legal prescription period greater than such period, in which case the aggregate not in excess period shall be deemed to be extended until the lapse of the lesser relevant legal prescription period. The Vendor shall not be liable for any Tax Warranty Claim unless the Purchaser gives written notice containing a summary of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, nature of the Tax Warranty Claim as far as it is known to the Purchaser to the Vendor on or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b)before the date being four years from Completion.
(2) KEI 12.4 A Claim shall not be enforceable against the Vendor and the Buyers on behalf of each shall be deemed to have been withdrawn unless legal proceedings in respect of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
Claim are commenced (3by being issued and served) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter within nine months of credit in the amount service of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution notice of the Accountant Claim, such letter of credit shall be reduced to $250,000 for Claim on the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyVendor.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect to Notwithstanding any Claim for which indemnification is sought under Section 1 other provision of this Agreement, the following provisions shall apply:
(1i) The KEI Buyer Indemnified Parties shall collectively be entitled have the right to pursue Claims payment by Seller under Section 6(b)(i) only if the Buyer Indemnified Parties shall have incurred as to all inaccuracies and recover breaches indemnifiable Losses as in excess of $500,000 (the “Deductible”); provided in Section 1 of this Agreementthat, in once the aggregate not Buyer Indemnified Parties have incurred such indemnifiable Losses in excess of the lesser Deductible, they shall have the right to payment by Seller only to the extent such indemnifiable Losses exceed $250,000; provided, further, that the maximum aggregate obligation of Seller to the Buyer Indemnified Parties under Section 6(b)(i) shall not exceed $42,000,000 (ithe “Cap”). Notwithstanding anything to the contrary herein, the limitations contained in the provisos above shall not apply to (A) any indemnification for any Losses incurred by the actual compensatory damages suffered Buyer Indemnified Parties for any intentional misrepresentation or fraudulent breach of a representation or warranty contained herein or in any Transaction Agreement, (B) any indemnification for any Losses incurred by such KEI the Buyer Indemnified PartiesParties in connection with any Liability indemnified by Seller under Sections 6(b)(ii), (iii) and (iv) or (iiC) $1,200,000; provided that no such liability limits apply to subsection 1(bany indemnification for Losses incurred by the Buyer Indemnified Parties in connection with any Liability for breaches of Sections 3(a), (b), (c), (e) and (l).
(2ii) KEI and the Buyers on behalf of each of such KEI The Seller Indemnified Parties hereby waive any shall have the right to recover incidentalpayment by Buyer under Section 6(c)(i) only if the Seller Indemnified Parties shall have incurred as to all inaccuracies and breaches indemnifiable Losses in excess of the Deductible; provided that, indirectonce the Seller Indemnified Parties have incurred such indemnifiable Losses in excess of the Deductible, specialthey shall have the right to payment by Buyer only to the extent such indemnifiable Losses exceed $250,000. Notwithstanding anything to the contrary herein, exemplarythe limitation contained in the proviso above shall not apply to (A) any indemnification for any Losses incurred by the Seller Indemnified Parties for any intentional misrepresentation or fraudulent breach of a representation or warranty contained herein or in any Transaction Agreement, punitive (B) any indemnification for any Losses incurred by the Seller Indemnified Parties in connection with any Liability indemnified by Seller under Sections 6(c)(ii) and (iii) or consequential damages(C) any indemnification for Losses incurred by the Buyer Indemnified Parties in connection with any Liability for breaches of Sections 4(a), (b) and (c).
(3iii) Anything The indemnification provided in this Section 6 shall be the sole and exclusive remedy after the Closing for damages available to the contrary Parties for breach of any of the representations and warranties, covenants (other than Sections 6(f) and 6(g)) or other obligations of the Parties contained herein; provided, however, that this exclusive remedy for damages does not preclude a Party from pursuing remedies under applicable Law for fraud or intentional misrepresentation.
(iv) Notwithstanding anything contained in this Agreement notwithstandingto the contrary, KEI no Party shall be liable to the other Party or its Affiliates for special, consequential, punitive or exemplary Losses or damages; provided, however, that the forgoing shall not preclude (A) recovery by an Indemnified Party in respect of Losses directly incurred from Third-Party Claims or (B) a Party from pursuing remedies under applicable Law for fraud or intentional misrepresentation.
(v) The amounts for which the Parties shall be liable under Sections 6(b) and 6(c) shall be net of (A) any insurance recovered by the Indemnified Parties from their own insurance policies (it be understood that no such Indemnified Party shall be required make a claim with its insurance carrier for any such recovery) and (B) the amount of the applicable Loss arising out of any item which a Party can demonstrate was included as an Account Payable or Accrued Expense in calculating Closing Net Working Capital. For the avoidance of doubt, no indemnification shall be required under this Agreement for any differences between reserves, estimates or accruals related to any item and the Buyers agree actual value or level of such item.
(vi) Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall eliminate, limit or prohibit any Seller rights, and Seller shall retain all its rights, pursuant to Law, including common law and any applicable Environmental, Health, and Safety Requirements, to recover from any third party any Losses that are or may become the KEI subject of any claim for indemnification by any Buyer Indemnified Parties; provided that, upon the written request and at the direction of Seller, Buyer Indemnified Parties shall promptly and diligently pursue, at Seller’s expense, all remedies Buyer Indemnified Parties may have against any third parties for any such Losses, unless such remedies have no reasonable chance of success; provided, further, that, the amounts for which Seller shall be entitled liable for such Losses under Section 6(b) shall be net of any amounts recovered by the Buyer Indemnified Parties from any third parties.
(vii) Notwithstanding any provision of this Agreement to look solely the contrary, Seller shall not be required to indemnify any Buyer Indemnified Parties, and shall not have any Liability for any Pre-Closing Environmental Liabilities, any breaches of the representations and warranties contained in Section 3(s) or Section 3(v) or any other matters pursuant to Environmental, Health and Safety Requirements to the extent (A) any Buyer Indemnified Parties (1) incur any costs resulting or arising from any investigation of or Remedial Action with respect to environmental conditions (including drilling or sampling) following the Closing other than any investigation or other Remedial Action reasonably required by Environmental, Health and Safety Requirements; provided that, without limiting any other provision of this Agreement (including the procedures in Section 6(g)(x)), this Section 6(e)(vii)(A)(1) shall not apply to (ix) Phase II sampling conducted for the purpose of reasonably identifying a known or suspected release of Hazardous Materials at the Target Business’ Soderhamn, Sweden facility to the extent such sampling is reasonably recommended by a Phase I environmental site assessment commenced within 30 days of the Closing Date and conducted to applicable ASTM standards by or on behalf of the Buyer and to the extent such sampling is permitted by the legal owner of the Soderhamn, Sweden facility (provided that, Buyer shall provide Seller with a reasonable opportunity to review and comment on a draft of any such Phase I report prior to its finalization and on the scope and workplan of any such Phase II sampling prior to conducting such sampling), (y) Phase II sampling conducted for the purpose of reasonably identifying a known or suspected release of Hazardous Materials at the Real Properties in Prentice, Wisconsin, Owatonna, Minnesota or Zebulon, North Carolina to the extent reasonably recommended by a Phase I environmental site assessment conducted to applicable ASTM standards and to the extent conducted by or on behalf, and at the reasonable request, of a bone fide prospective purchaser of the relevant Real Property from the Buyer for the purpose of reasonably establishing a legal defense to liability for such a release of Hazardous Materials pursuant to applicable Environmental, Health and Safety Requirements (provided that, Buyer shall provide Seller with a reasonable opportunity to review and comment on a draft of any such Phase I report prior to its finalization and on the scope and workplan of any such Phase II sampling prior to conducting such sampling) and (z) a letter release of credit Hazardous Materials discovered solely as a result of commercially reasonable construction activities by Buyer at any Real Property in connection with an expansion of current Target Business operations (provided that, commercially reasonable construction activities shall in no case include any activities conducted for the amount purpose of $1,200,000 identifying or assessing known, unknown or suspected environmental conditions, including any release of Hazardous Materials, excluding activities solely conducted for recovery a commercially reasonable geotechnical, architectural and/or engineering purpose in connection with construction activities), (2) incur any costs in excess of the costs to comply with industrial cleanup standards or other applicable minimum standards, including the use of environmental land use restrictions, or otherwise in excess of the minimum costs necessary to bring a condition into compliance with Environmental, Health and Safety Requirements or to satisfy the reasonable requirements of a Governmental Authority or (3) contribute to or exacerbate any environmental condition or other Pre-Closing Environmental Liability after the Closing, (B) such Liability arises out of the cessation of or change in operations at, or the closure or demolition of, a facility of the Target Business, (C) such Liability results or arises from the removal of asbestos-containing materials or lead paint, except to the extent such asbestos-containing materials or lead paint were in a condition at or prior to the Closing not in compliance with Environmental, Health, and Safety Requirements or (D) such Liability arises out of any post-Closing exposure to any Hazardous Material, except to the extent provided under Section 6(b)(iii) with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree thatAsbestos Liability, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect Silica Liability or Welding Rod Liability or to the R&W Insurance Policyextent such Liability constitutes a Pre-Closing Environmental Liability.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Blount International Inc)
Limitations on Liability. (a) With Seller, ADMA and Buyer shall reasonably cooperate with each other in resolving any Action or Liability with respect to any Claim for which indemnification one Party is sought obligated to indemnify the other under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled including by making commercially reasonable efforts to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by mitigate or resolve any such KEI Indemnified Parties, Action or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyLiability.
(b) With Upon making any payment to an Indemnified Party in respect of any Losses, the Indemnifying Party, shall, to any Claim asserted by the extent of such payment, be subrogated to all rights of the Indemnified Party against any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess respect of the lesser Losses to which such payment relates, but only if the right of action for subrogation would not (i) have an adverse effect in any material respect on the actual compensatory damages suffered by such KEI Indemnified Parties, Party’s business or (ii) $8,000,000.
relate to the Indemnified Party’s customers, suppliers, vendors or other service providers. In the case of either clause (2i) KEI and or (ii) of the Buyers on behalf of each foregoing sentence, the Parties agree that in lieu of such KEI subrogation, the Indemnified Parties hereby waive Party shall use its commercially reasonable efforts to seek recovery of its applicable indemnifiable Losses from such third party, and any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties amounts so recovered shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to deducted from the amount of Losses the Indemnified Party is entitled to recover hereunder; provided, however, that in no event shall the Indemnified Party be required to commence any deductible Action against such third party to seek recovery of its applicable indemnifiable Losses from such third party. If an Indemnifying Party is entitled to be subrogated to the rights of the Indemnified Party under this Section 11.8(b), Indemnified Party and Indemnifying Party shall execute upon request of the Indemnifying Party all instruments reasonably necessary to evidence or further perfect such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warrantiessubrogation rights.
(c) Except as expressly provided in Section 3(aNOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO PARTY TO THIS AGREEMENT SHALL BE LIABLE TO OR OTHERWISE RESPONSIBLE TO THE OTHER PARTY OR ANY AFFILIATE OF THE OTHER PARTY FOR LOST REVENUES OR PROFITS OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR ANY ANCILLARY AGREEMENT (OTHER THAN THE EQUITY DOCUMENTS AND THE COMMERCIAL AGREEMENTS WHICH CONTAIN THEIR OWN INDEMNIFICATION PROVISIONS AND TO WHICH THIS SECTION 11.8(C) and (bDOES NOT APPLY) aboveOR THE PERFORMANCE OR BREACH HEREOF OR THEREOF OR ANY LIABILITY RETAINED OR ASSUMED HEREUNDER OR THEREUNDER, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsEXCEPT TO THE EXTENT THAT SUCH DAMAGES WERE AWARDED OR PAID TO A THIRD PARTY PURSUANT TO A THIRD PARTY CLAIM.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Adma Biologics, Inc.)
Limitations on Liability. (a) With respect to BD shall not have any Claim for which indemnification is sought under Section 1 of duties or responsibilities hereunder other than those specifically set forth herein and no implied obligations shall be read into this Agreement, the following provisions . BD shall apply:
(1) The KEI Indemnified Parties shall collectively not be entitled liable to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of Newco for (i) any accident or damage caused by electric lights or wires or the actual compensatory damages suffered operation of elevators, heating, lighting or plumbing apparatus, or any accident or injury occurring in connection with the Building or any services provided by such KEI Indemnified PartiesBD, (ii) losses of or damage to property of Newco caused by rain, snow, water or steam that may leak into or flow from any part of the Building through any defects in the roof or plumbing or from any other source, including but not limited to, acts or omissions on the part of other occupants or users of the Building or persons using or present at the Building, or (iiiii) $1,200,000; provided that no such liability limits apply thefts or losses of, or damage to, any goods, cash, personal effects or other personal property stored or placed by Newco (or any Newco Affiliate) in or about the Facilities, unless the losses or --------------- CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS. damages referred to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to said items (i) a letter through (iii) are caused by the gross negligence or willful misconduct of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree thatBD, upon the finalits affiliates, non-appealable resolution of the Accountant Claimemployees, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereofagents, representatives, or successors and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policyassigns. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL BD BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM LOSS OF TIME, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL, WHETHER FORESEEABLE OR UNFORESEEABLE.
(b) With respect Except as otherwise provided herein, neither Newco nor TriPath nor any of their respective officers, directors, shareholders, affiliates, employees, agents, representatives, successors or assigns shall be liable for any action taken or omitted to any Claim asserted be taken by any third party as to the matters set forth Newco or TriPath under or in Section 2 of connection with this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess except for losses incurred by BD arising out of the lesser gross negligence or willful misconduct of (i) Newco or TriPath, as the actual compensatory damages suffered by such KEI Indemnified Partiescase may be, and their respective affiliates, employees, agents, representatives, or (ii) $8,000,000successors and assigns. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL NEWCO OR TRIPATH BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM LOSS OF TIME, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL, WHETHER FORESEEABLE OR UNFORESEEABLE.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Transitional Services Agreement (Tripath Imaging Inc)
Limitations on Liability. (a) With The rights of a Purchaser Indemnified Party to assert claims against the Holdback Fund under this Article 9 will be the sole and exclusive remedy of a Purchaser Indemnified Party for any indemnification claims in respect to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
Agreement (1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery other than with respect to any Claim injunctive relief available to any Purchaser Indemnified Party or any rights a Purchaser Indemnified Party may have against a particular Securityholder with respect to such representations and warranties of the Securityholder as are set forth in the Transmittal Letter executed and delivered by such Securityholder) and the transactions contemplated by this Agreement, and Purchaser Indemnified Parties will have no other rights or remedies for money damages in connection with any breach of this Agreement or any other Loss arising out of the negotiation, entry into or consummation of the transactions contemplated by this Agreement, and no Securityholder will have any liability in excess of its pro rata share of the then remaining amount in the Holdback Fund (in each case other than with respect to such representations set forth in such Securityholder's Transmittal Letter). After the Closing Date, no party may seek the rescission of the transactions contemplated by this Agreement. The Holdback Fund will be the sole and exclusive source for the Purchaser Indemnified Parties to recover Losses for which they may be entitled under Section 1 this Article 9. Notwithstanding anything contained herein to the contrary, the Purchaser Indemnified Parties will not have any rights to indemnification under this Agreement unless and until all aggregate Losses subject to such indemnification collectively exceed $750,000 (the "Threshold"), whereupon such indemnification will thereafter be available (subject to the other provisions of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of such Losses that exceed the Threshold; provided, however, that the Threshold will not apply to (i) any deductible under such insurance policy, to a letter inaccuracy in or breach of credit any representation or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided warranty of the Company contained in Section 3(a3.4 or (ii) the matters described in Sections 9.1(c) through 9.1(f) hereof (and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise pursuant to any Losses that are indemnifiable inaccuracy in or recoverable hereunder breach of such representation or warranty of the Company contained in connection herewithSection 3.4 or the matters described in Sections 9.1(c) through 9.1(f) will not count toward the Threshold). In no event will the Purchaser's Liability under this Agreement exceed the amount of the Merger Consideration. Notwithstanding any other provision of this Agreement, nothing in this Agreement limits the Liability of a party to another party for fraud by such party.
Appears in 1 contract
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 Notwithstanding the foregoing provisions of this Agreement, the following provisions shall applyArticle 9 :
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything notwithstanding anything to the contrary contained in this Agreement notwithstandingAgreement, KEI and to the Buyers agree extent that an adjustment has been made to the KEI Indemnified Parties Acquisition Price or any other payments are made hereunder in respect of any matter relating to or arising out of this Agreement, no duplicate recovery shall be entitled to look solely to available hereunder;
(iii) a letter for greater certainty, Damages (which for greater certainty do not include AUC Disallowances) do not include any loss, liability, claim, damage, fine and other penalty, cost, charge or expense which is recovered by an Operating Entity as part of credit in its subsequent revenue requirement;
(iii) the amount Sellers and 000000 Xxxxxxx Ltd. shall have no liability under this Agreement and no Damages may be recovered from any of $1,200,000 for recovery the Sellers or 942064 Alberta Ltd. with respect to any Claim arising under Section 1 of this Agreement; provided that facts, events, circumstances or acts which (A) are not in the parties agree that, upon the final, non-appealable resolution Ordinary Course of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration Business (as of the indemnification set forth in Section 1(b) hereoftime immediately before Closing), and (iiB) were requested or directed by the Purchaser or any one of its Affiliates, including as it relates to the way the Acquired Entities handle potential AUC Disallowances;
(iv) the Sellers and 000000 Xxxxxxx Ltd. shall have no liability under this Agreement and no Damages may be recovered from any of the Sellers or 942064 Alberta Ltd. for a letter claim of credit the Purchaser or any Purchaser Indemnified Person in respect of any incorrectness or breach of any representation or warranty contained in this Agreement which does not exceed, individually, an amount equal to at least $125,000 (in this Section 9.7, an Eligible Claim), except, for greater certainty, for a claim made by the Purchaser pursuant to Section 9.3(a);
(v) The Sellers and 942064 Alberta Ltd. shall have no liability under this Agreement and no Damages may be recovered in respect of any incorrectness or breach of any representation or warranty contained in this Agreement from any of the Sellers or 942064 Alberta Ltd. unless the Eligible Claims of the Purchaser and the Purchaser Indemnified Persons, together with the AUC Disallowances in respect of which the Purchaser is not indemnified by the Sellers and 000000 Xxxxxxx Ltd. in accordance with Section 9.3(a), exceed, in the aggregate, an amount equal to at least one percent (1.0%) of the Acquisition Price, in which case the liability of the applicable Indemnifying Party is solely for the amount of $100,000 for payment by KEI such Eligible Claims in excess of one percent (1.0%) of the deductible payable Acquisition Price;
(vi) the liability of the Sellers and 942064 Alberta Ltd. in respect of Eligible Claims of the Purchaser or the Purchaser Indemnified Persons under this Agreement, together with the AUC Disallowances in respect of which the Sellers and 942064 Alberta Ltd. indemnify the Purchaser pursuant to Section 9.3(a), shall not exceed, in the aggregate, ten percent (10%) of the Acquisition Price, except for Damages arising from (A) breaches to the Fundamental Representations or, (B) fraud, intentional misrepresentation or deliberate or willful breach by the Sellers or 942064 Alberta Ltd. in respect of which, the Damages under this Agreement shall not exceed, in the aggregate, the Acquisition Price;
(vii) the Sellers and 000000 Xxxxxxx Ltd. shall have no liability under this Agreement and no Damages may be recovered from any of the Sellers or 942064 Alberta Ltd. with respect to the R&W Insurance Policyor as a result of AUC Disallowances, except as contemplated in Section 9.3(a); and
(viii) neither Party shall have any liability hereunder with respect to incidental, consequential, exemplary or punitive damages, loss of profits (whether characterized as direct or indirect damages), lost business opportunities, or damages calculated by reference to any Acquisition Price methodology.
(b) With respect to Notwithstanding any Claim asserted by any third party as to the matters set forth in Section 2 other provision of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided solely for purposes of calculating Damages under this Article 9, any qualifications or limitations set forth in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, any representation or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary warranty contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties as to materiality or material adverse effect (or derivative of such terms or other similar materiality qualifier) contained therein shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warrantiesdisregarded.
(c) Except Any payments by one Party to another for the benefit of the other Party made pursuant to this Article 9 shall be treated by the Parties for all purposes as expressly provided in Section 3(a) and (b) above, KEI, an adjustment to the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsAcquisition Price.
(d) Each KEI Indemnified Party For greater certainty, the amounts and percentages set forth in Sections 9.7(a)(iv), 9.7(a)(v) and 9.7(a)(vi) apply once to the Sellers and 000000 Xxxxxxx Ltd., taken as a whole, and are not to be applied separately to each of the Sellers and 942064 Alberta Ltd.
(e) Notwithstanding anything herein contained to the contrary, other than as set forth in Section 5.6(e), the Sellers and 000000 Xxxxxxx Ltd. shall use Commercially Reasonable Efforts have no liability or obligation under this Agreement in connection with the failure to mitigate all Losses upon becoming aware disclose any fact, event, nature of any event relationship, Contract or circumstance that could reasonably other information with respect to or resulting from the Fort XxXxxxxx Project and all such facts, events, nature of relationship, Contracts or other information shall be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewithdeemed disclosed.
Appears in 1 contract
Samples: Share Purchase Agreement (Berkshire Hathaway Energy Co)
Limitations on Liability. (ai) With respect to Notwithstanding any Claim for which indemnification is sought under Section 1 other provision of this Tolling Services Agreement and except as set forth in Section 19(e)(ii), to the extent permitted by applicable Law, neither Party shall be liable for punitive damages or special, indirect or incidental consequential damages or loss of profit or income arising out of breach of this Tolling Services Agreement, tort (including negligence) or any other theory of liability, and each Party hereby releases the following provisions other Party from any such liability.
(ii) The foregoing limitation on liability for special, indirect and incidental consequential damages or loss of profit or income shall applynot apply to or limit any right of recovery one Party may have against the other Party under applicable Law respecting the following:
(1A) The KEI Indemnified Parties shall collectively be Losses, damages, debts, obligations and liabilities (including defense costs) to the extent covered by the proceeds of insurance actually carried by or insuring the liable Party;
(B) Losses, damages, debts, obligations and liabilities arising out of fraud, criminal conduct, intentional misconduct, recklessness, bad faith or gross negligence;
(C) Developer’s obligation to pay compensation to TxDOT under this Tolling Services Agreement as set forth in Section 6; provided, however, that to the extent pursuant to applicable Law TxDOT is entitled to pursue Claims claim from Developer damages that result from an early termination (other than an early termination due to a default by TxDOT hereunder) and recover Losses as provided constitute a measure of future compensation, the aggregate amount of such damages, if any, that may be payable to TxDOT for such lost future compensation in Section 1 respect of the remaining period of the stated Term of this Tolling Services Agreement (without regard to such early termination hereof) following the date of any such termination hereof shall not exceed the TxDOT Prospective Compensation Damages Limit (and for the avoidance of doubt, it is acknowledged that such limitation applies only in respect of TxDOT’s prospective compensation that would be lost as a consequence of the early termination of this Tolling Services Agreement, in the aggregate and such limitation shall not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf limit any claims of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely TxDOT relating to (i) a letter any compensation accrued and owing to TxDOT under this Tolling Services Agreement as of credit in the amount date of $1,200,000 for recovery with respect to any Claim arising under Section 1 termination of this Agreement; provided that the parties agree thatAgreement by TxDOT due to a default by Developer hereunder, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter amounts owing to TXDOT in connection with any such termination in respect of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect TxDOT’s recoverable unamortized costs and expenses related to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Partiesits services hereunder), or (iiiii) $8,000,000.any Developer breach or failure to perform under the Agreement;
(2D) KEI Loss of Toll Revenues owing to Developer, attributable to a TxDOT breach or failure to perform;
(E) Damages that are owing by a Party under another agreement or contract pertaining to the Project (including, without limitation, the Agreement) or the services under this Tolling Services Agreement and that are incurred due to the Buyers on behalf other Party’s breach of each this Tolling Services Agreement;
(F) Transition costs incurred by Developer or TxDOT upon its proper exercise of such KEI Indemnified Parties hereby waive any a right to recover incidental, indirect, special, exemplary, punitive or consequential damages.terminate this Tolling Services Agreement;
(3G) Anything In the event of Developer’s proper exercise of a right to terminate this Tolling Services Agreement, costs Developer incurs to procure, hire, transition to and compensate a replacement service provider for comparable services for the remainder of the term after termination, to the contrary contained in this Agreement notwithstandingextent the compensation exceeds that which would be owing to TxDOT for the remainder of the term, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely subject to the R&W Insurance Policy with respect limitation that damages related to claims brought pursuant any difference in level of compensation of the replacement service provider shall not exceed the Replacement Provider Compensation Damages Limit;
(H) Specific amounts either Party may owe or be obligated to Section 2 hereof, and, with respect reimburse to the amount other Party under the express provisions of this Tolling Services Agreement in respect of any deductible under such insurance policyperiod prior to termination;
(I) Interest, late charges, fees, transaction fees and charges, penalties and similar charges that this Tolling Services Agreement expressly states are due from one Party to the other Party; and
(J) Any credits, deductions or offsets that this Tolling Service Agreement expressly provides to a letter of credit or bond in form reasonably satisfactory Party against amounts owing to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsParty.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Tolling Services Agreement
Limitations on Liability. (a) With respect This Clause 6.8 applies to any Claim for provision appearing in any agreement or arrangement made between any Group Company on the one hand and any person other than an Indemnified Person on the other, whereby the extent to which indemnification such Group Company or any other person may claim against such other person in respect of anything which may arise is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect subject to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and limitation or exclusion (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyLimitation).
(b) With respect to any Claim asserted by any third party as to The Parent shall notify the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount Commitment Lenders of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and WarrantiesLimitation as soon as practicable after it comes into existence.
(c) Except as expressly provided in Section 3(a) Where any loss or damage is suffered by any Group Company for which, apart from any Limitation, any Indemnified Person would be liable to that Group Company jointly and (b) above, KEIseverally with persons other than Indemnified Persons, the Buyers extent to which such loss or damage shall be recoverable from the Indemnified Persons shall be limited so as to be in proportion to the contribution of the Indemnified Persons to the overall fault for such loss or damage, as agreed between the Company and the KEI Indemnified Parties may not proceed against RidgewoodPersons or, in the Sellers or their respective shareholdersabsence of agreement, directorsas finally determined by a court of competent jurisdiction, officersbut in any event, managers, members, employees or agents other no Indemnified Person shall have a greater liability than on grounds constituting fraud or violation of securities lawsit would have incurred but for the Limitation.
(d) Each KEI Where an Indemnified Party Person is liable to any Group Company for any loss or damage and, but for a Limitation, the Indemnified Person would have been entitled to recover a contribution, or an increased contribution, to such liability from any person other than an Indemnified Person, the liability of the Indemnified Person to such Group Company shall use Commercially Reasonable Efforts not exceed the net amount for which the Indemnified Person would have been liable had it been able to mitigate all Losses upon becoming aware recover the amount of such contribution or increased contribution.
(e) Where an Indemnified Person is finally determined by a court of competent jurisdiction to be liable for any loss, damage or liability suffered by any person other than any Group Company or is finally determined by a court of competent jurisdiction to be liable to make a contribution thereto, the Company shall indemnify that Indemnified Person in respect of any event amount which it would have been entitled to recover in respect of that loss, damage, liability or circumstance contribution from any other person by way of contribution but for a Limitation, provided that, for the avoidance of doubt, nothing in this Agreement shall imply that could any Indemnified Person shall be under any obligation to appeal any determination by a court of competent jurisdiction.
(f) All sums payable to an Indemnified Person pursuant to this Clause 6.8 shall be paid within 30 days of written demand by such Indemnified Person.
(g) The degree to which any Indemnified Person shall be entitled to rely on the work of any adviser to the Company or the Parent or any other person shall be unaffected by any Limitation.
(h) If the Company or the Parent (as the case may be) makes a payment pursuant to this Clause 6.8 (an Indemnity Amount) to an Indemnified Person and such Indemnified Person subsequently recovers from a third party any amount (the Third Party Amount) in respect of the same loss the relevant Commitment Lender shall, or shall procure that the relevant Indemnified Person shall, as soon as reasonably be expected practicable, reimburse to give rise the Company an amount equal to the lesser of the Indemnity Amount and the Third Party Amount, less any Losses that are indemnifiable or recoverable hereunder or in connection herewithreasonable costs of recovery.
Appears in 1 contract
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Purchaser Indemnified Parties shall collectively be entitled have the right to pursue Claims payment by Seller under Section 9.2(a) if and recover only if, and only to the extent that, the Purchaser Indemnified Parties shall have incurred (i) as to all claims under Section 9.2(a), Indemnifiable Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of $[***] (the lesser of (i) “Claims Threshold”), in which case the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Purchaser Indemnified Parties shall be entitled have a right to look solely payment only to (i) a letter the extent of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereofexcess, and (ii) a letter of credit Indemnifiable Losses in the amount excess of $100,000 [***] for any individual claim that is not part of a group of factually related claims. The Seller Indemnified Parties shall have the right to payment by KEI Purchaser under Section 9.3(a) if and only if, and only to the extent that, the Seller Indemnified Parties shall have incurred, as to all claims under Section 9.3(a), Indemnifiable Losses in excess of the deductible payable with respect Claims Threshold, in which case the Seller Indemnified Parties shall have a right to payment only to the R&W Insurance Policyextent of such excess.
(b) With respect Absent [***], Seller shall not be required to any Claim asserted by any third party as to the matters set forth pay indemnifable damages under this Article IX for breaches of representations or warranties in Section 2 of excess of: [***]. Absent [***], Purchaser shall have no liability under or otherwise in connection with this Agreement, the following provisions Agreement for breaches or representations or warranties if Purchaser shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims have been held liable for and recover Losses as provided in Section 2 of this Agreement, in the aggregate not satisfied claims hereunder in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000[***].
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided Notwithstanding anything to the contrary in Section 3(a) this Agreement, absent [***], and (b) above, KEIexcept in the case of specific performance and injunctive relief, the Buyers and right of the KEI Indemnified Parties may not proceed against Ridgewood, to be indemnified pursuant to this Section 9 will be the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts sole and exclusive remedy with respect to mitigate any and all Losses upon becoming aware of any event kind or circumstance that could reasonably be expected to give rise nature whatsoever, whether in law, equity or otherwise, known or unknown, which such parties have now or may have in the future, including without limitation, any damages or losses attributable to any Losses that are indemnifiable inaccuracy or recoverable hereunder breach of any representation or warranty, or any failure to perform the covenants, agreements or undertakings contained in connection herewiththis Agreement, any disclosure schedule or certificate delivered pursuant to this Agreement.
Appears in 1 contract
Limitations on Liability. Notwithstanding any other provision of this Agreement or any right or remedy available under any Law:
(a) With The Purchaser Indemnified Parties shall have the right to payment by the Seller under Section 12.2(a) only if, and only to the extent that, the Purchaser Indemnified Parties shall have incurred indemnifiable Losses in excess of $424,000 and then only for the amounts in excess thereof; provided, however, that the foregoing limitation shall not apply with respect to any Claim for which indemnification is sought indemnifiable Losses under Section 1 Sections 12.2(b), (c) or (d) or relating to a breach or inaccuracy of this Agreementany Tax Warranty, the following provisions shall apply:Environmental Warranty or Title and Authorization Warranty.
(1b) The KEI Indemnified Parties Neither the Seller nor any of its Affiliates shall collectively be entitled to pursue Claims and recover Losses as provided have any liability under or otherwise in Section 1 of connection with this Agreement, in Agreement or the aggregate not Related Agreements or the transactions contemplated hereby or thereby in excess of $6,360,000 in the lesser aggregate; provided, however, that the foregoing limitation shall not apply with respect to any indemnifiable Losses under Sections 12.2(b), (c) or (d) or relating to a breach or inaccuracy of any Tax Warranty, Environmental Warranty or Title and Authorization Warranty.
(c) Neither the Seller nor any of its Affiliates shall have any liability under or otherwise in connection with this Agreement or the Related Agreements or the transactions contemplated hereby or thereby in excess of $42,400,000 (“Cap”) in the aggregate; provided, however, that such Cap shall not apply to any indemnifiable Losses under (i) Section 12.2(b) with respect to post-Closing covenants and obligations under this Agreement or any Related Agreement (exclusive of obligations of the actual compensatory damages suffered Seller under the Transition Services Agreement, which shall be governed by such KEI Indemnified Partiesthe limitations set forth therein), or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(bSections 12.2(c) or (d).
(2d) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI The Seller Indemnified Parties shall be entitled have the right to look solely payment by the Purchaser under Section 12.3(a) only if, and only to (i) a letter of credit the extent that, the Seller Indemnified Parties shall have incurred indemnifiable Losses in the amount excess of $1,200,000 424,000 and then only for recovery the amounts in excess thereof; provided, however, that the foregoing limitation shall not apply with respect to any Claim arising indemnifiable Losses under Section 1 Sections 12.3(b), (c) or (d) or relating to a breach or inaccuracy of any Title and Authorization Warranty.
(e) Neither the Purchaser nor any of its Affiliates shall have any liability under or otherwise in connection with this AgreementAgreement or the Related Agreements or the transactions contemplated hereby or thereby in excess of $6,360,000 in the aggregate; provided provided, however, that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit foregoing limitation shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable not apply with respect to the R&W Insurance Policyany indemnifiable Losses under Sections 12.3(b), (c) or (d) or relating to a breach or inaccuracy of any Title and Authorization Warranty.
(bf) With respect to Neither the Purchaser nor any Claim asserted by of its Affiliates shall have any third party as to liability under or otherwise in connection with this Agreement or the matters set forth in Section 2 of this Agreement, Related Agreements or the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not transactions contemplated hereby or thereby in excess of the lesser of Cap in the aggregate; provided, however, that such Cap shall not apply to any indemnifiable Losses under (i) Section 12.3(b) with respect to post-Closing covenants and obligations under this Agreement or any Related Agreement (exclusive of obligations of the actual compensatory damages suffered Purchaser under the Transition Services Agreement, which shall be governed by such KEI Indemnified Partiesthe limitations set forth therein), or (ii) $8,000,000Sections 12.3(c) or (d).
(2g) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidentalIN NO EVENT SHALL THE SELLER OR ANY OF ITS AFFILIATES HAVE ANY LIABILITY UNDER THIS AGREEMENT, indirectANY RELATED AGREEMENT (OTHER THAN THE TRANSITION SERVICES AGREEMENT) OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY FOR ANY SPECIAL, specialSPECULATIVE, exemplaryINCIDENTAL, punitive or consequential damagesPUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE), WHETHER OR NOT THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(3h) Anything WITH THE EXCEPTION OF REMEDIES BASED ON FRAUD, THE SOLE AND EXCLUSIVE LIABILITY AND RESPONSIBILITY OF THE SELLER AND ITS AFFILIATES TO THE PURCHASER AND ITS AFFILIATES AND THE SOLE AND EXCLUSIVE LIABILITY AND RESPONSIBILITY OF THE PURCHASER AND ITS AFFILIATES TO THE SELLER AND ITS AFFILIATES UNDER OR IN CONNECTION WITH THE ASSETS, THE BUSINESS, THIS AGREEMENT, THE RELATED AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (INCLUDING FOR ANY BREACH OF OR INACCURACY IN ANY REPRESENTATION OR WARRANTY OR FOR ANY BREACH OF ANY COVENANT OR OBLIGATION OR FOR ANY OTHER REASON), AND THE SOLE AND EXCLUSIVE REMEDY OF THE PURCHASER AND ITS AFFILIATES WITH RESPECT TO ANY OF THE FOREGOING, SHALL BE AS SET FORTH IN THIS ARTICLE XII, or in ARTICLE XV of the Transition Services Agreement, as applicable. To the extent that either party hereto or any of its Affiliates has any Losses for which it may assert any other right to indemnification, contribution or recovery from the other party hereto or any of its Affiliates (whether under this Agreement or under any common law theory or any statute or other Law), such party hereby waives, releases and agrees not to assert such right, and such party agrees to cause each of its Affiliates to waive, release and agree not to assert such right, regardless of the theory upon which any claim may be based, whether contract, equity, tort, fraud, warranty, strict liability or any other theory of liability.
(i) Neither the Seller nor any of its Affiliates shall have any liability under or otherwise in connection with this Agreement or the Related Agreements or the transactions contemplated hereby or thereby for any Loss (i) to the contrary contained in this Agreement notwithstandingextent arising as a result of any action taken or omitted to be taken by the Purchaser or any of its Affiliates, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy (ii) with respect to claims brought pursuant to Section 2 hereof, and, with respect any representation or warranty of the Seller herein to the amount of extent arising from or relating to any deductible under matter disclosed on the Schedules to this Agreement corresponding to such insurance policy, to a letter of credit representation or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) warranty and (biii) aboveto the extent accrued, KEI, provided or reserved for in the Buyers and Business Financial Statements or the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation Final Closing Statement of securities lawsInventory.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Owens & Minor Inc/Va/)
Limitations on Liability. (a) With respect Subject always to Clause 5.6, the Purchaser agrees with the Vendor that any Claim for which indemnification is sought under Section 1 of this Agreement, or Claims made by the Purchaser shall be governed by and shall be dealt with in accordance with the following provisions of this Schedule, where applicable. The liability of the Vendor in respect of any Claims shall apply:
be limited, where applicable, as follows:- there shall be disregarded for all purposes (1including, for the avoidance of doubt, the application of the de minimis threshold in paragraph 2.2) The KEI Indemnified Parties shall collectively any Warranty Claim in respect of which the amount which the Purchaser would otherwise (but for the provisions of this paragraph 2.1) be entitled to pursue recover would be less than £50,000; the Purchaser shall not be entitled to recover any amount in respect of a Warranty Claim unless the amount recoverable, when aggregated with all other amounts recoverable for all Warranty Claims, exceeds £250,000, in which event only the excess over £250,000 shall be recoverable; and the aggregate liability of the Vendor in respect of all and any Claims shall be limited to and recover Losses shall in no event exceed $16,500,000. The Vendor shall:- cease to have any liability for any Warranty Claim (apart from any Warranty Claim in relation to the Warranties contained in paragraph 18 of Schedule 4 (the "Tax Warranties"), on 31 March 2003; cease to have any liability for breach of the Tax Warranties and under the Tax Covenant on the seventh anniversary of Completion; have no liability in respect of a Warranty Claim of which the Purchaser has not given written notice (containing such details (as provided are available to the Purchaser or any other member of the Purchaser Group at that time) of the nature of the potential liability and, so far as is practicable, of the amount likely to be claimed in Section 1 respect of the Warranty Claim) to the Vendor before the relevant date or dates set out in Clause 3.1 or Clause 3.2 as the case may be. The Vendor shall have no liability in respect of any Warranty Claim:- to the extent that the Warranty Claim in question arises, or is increased, as a result of any increase in rates of Taxation or any change in the law or published practice of a Revenue authority made after the date of this Agreement, in Agreement with retrospective effect; and to the aggregate not in excess extent that the Company or any of the lesser of Subsidiaries: (i) the actual compensatory damages is insured against any loss or damage suffered by such KEI Indemnified Parties, the Company or any of the Subsidiaries forming the basis of the Warranty Claim in question under the terms of any insurance policy of the Company or any of the Subsidiaries for the time being in force; and (ii) $1,200,000; provided actually recovers under such insurance policy. If any matter comes to the notice of the Purchaser, the Company or any of the Subsidiaries which may give rise to a Warranty Claim, the Purchaser shall (and shall procure that no such liability limits apply to subsection 1(b).
(2) KEI the Company and the Buyers on behalf Subsidiaries shall):- as soon as reasonably practicable give notice of each that matter to the Vendor, specifying in such detail as is reasonably available to it at that time the nature of the potential liability in respect of the relevant Warranty Claim and, so far as is practicable, the amount likely to be claimed in respect of it; use reasonable endeavours to procure that the current auditors of the Company and the Subsidiaries make available any relevant working papers in respect of audits of the Company's and the Subsidiaries accounts for any relevant accounting period in connection with such Warranty Claim; in respect of any third party claim or potential claim in respect of which the Purchaser has been notified in writing and which in the Purchaser's reasonable opinion is likely to give rise to a Claim (a "Third Party Claim") and save where to do so would or might reasonably breach or endanger the Purchaser's or any Group Company of the Purchaser's legal privilege in any accounts, documents or records, give the Vendor and its professional advisers reasonable access at any reasonable times to the premises and personnel of the Purchaser and/or the Company or any of the Subsidiaries (as the case may be) and to any relevant chattels, accounts, documents and records within the power or control of the Purchaser and/or the Company or any of the Subsidiaries so as to enable the Vendor and its professional advisers to examine such premises, chattels, accounts, documents and records and to take copies at their own expense; If the Purchaser becomes aware of any Third Party Claim other than any Third Party Claim relating to the Tax Warranties, (subject to being fully indemnified to its reasonable satisfaction by the Vendor against all reasonable out-of-pocket costs and expenses incurred by the Purchaser or the Company or the Subsidiaries) the Purchaser shall:- procure that notice of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything Third Party Claim is given to the contrary contained Vendor as soon as is reasonably practicable; not make and shall co-operate to procure that the Company and the Subsidiaries shall not make any admission of liability, agreement or compromise with any person, body or authority in relation to any such Third Party Claim without prior consultation with the Vendor; save where to do so might in the reasonable opinion of the Purchaser have a significant adverse effect on the business of the Target Group or its ability to obtain or maintain financing, take and shall co-operate to procure that the Company and the Subsidiaries shall take such action as the Vendor may reasonably request to avoid, dispute, resist, appeal, compromise or defend such Third Party Claim or any adjudication in respect of that third party claim; and save where to do so might in the reasonable opinion of the Purchaser have a significant adverse effect on the business of the Target Group or a significant adverse effect on its ability to obtain or maintain financing in relation to the Target Group if so required by the Vendor in writing, shall (subject to entering into arrangements to the Purchaser's reasonable satisfaction under which the Vendor indemnifies the Purchaser or any relevant member of the Purchaser Group) ensure (or, as appropriate, shall co- operate to procure that the Company and the Subsidiaries shall ensure), at the request in writing of the Vendor, that the Vendor is placed in a position to take on or take over the conduct of all proceedings and/or negotiations of whatsoever nature arising in connection with the Third Party Claim in question and provide (or, as appropriate, co-operate to procure that the Company and the Subsidiaries provide) such information and assistance as the Vendor may reasonably require in connection with the preparation for and conduct of such proceedings and/or negotiations. For the avoidance of doubt:- nothing in this Agreement notwithstanding, KEI Schedule shall limit the Purchaser's obligation to mitigate its loss in respect of any Warranty Claim and the Buyers agree that Purchaser undertakes to mitigate its loss in relation to all other Claims; and neither the KEI Indemnified Parties Purchaser nor the Company or any of the Subsidiaries shall be entitled to look solely recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any one shortfall, damage, deficiency, breach or other set of circumstances which give rise to one or more Claim or Claims or other claim or claims made under this Agreement or any of the Transitional Services Agreement or the Distribution Agreements as the case may be and for this purpose recovery by the Purchaser or any Purchaser Group Company shall be deemed to be a recovery by each of them in respect of any Claim or other claim or claims made under this Agreement or any of the Transitional Services Agreement or the Distribution Agreements as the case may be; If the Vendor pays to the Purchaser an amount in discharge of a Warranty Claim and the Purchaser or a Target Group Company subsequently recovers (iwhether by payment, discount, credit, relief or otherwise) from a third party (including any tax authority) a letter of credit sum which is referable to the matter giving rise to the Warranty Claim or obtains a relief (as defined in the Tax Covenant) which is so referable, the Purchaser shall (or, as appropriate, shall procure that the Target Group Company shall) forthwith reimburse the Vendor:- an amount equal to the sum recovered from the third party (or the value of $1,200,000 for recovery with the relief obtained, calculated by reference to the amount saved) less any reasonable out-of-pocket costs and expenses incurred by the Purchaser or the Target Group Company in recovering the same and any tax suffered on the receipt; or if the figure resulting under paragraph 7.1 above is greater than the amount paid by the Vendor to the Purchaser or the Target Group Company in respect of the relevant Warranty Claim or the aggregate payments previously made by the Vendor in respect of all relevant Warranty Claims, such lesser amount as shall have been so paid by the Vendor. If any Warranty Claim shall arise by reason of some liability which at the time that the Warranty Claim is notified to the Vendor is contingent only, the Vendor shall not be under any obligation to make any payment to the Purchaser in respect of such Warranty Claim arising under Section 1 of this Agreement; until such time as the contingent liability ceases to be so contingent (provided that this paragraph shall not operate to avoid a Warranty Claim made in respect of a contingent liability within the parties agree that, upon the final, non-appealable resolution applicable time limit specified in paragraph 3 if it becomes an actual liability). The sole remedy of the Accountant Claim, such letter Purchaser in respect of credit any Warranty Claim shall be reduced an action for damages or, as the case may be, a right to $250,000 for recover under an indemnity and the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions Purchaser shall apply:
(1) The KEI Indemnified Parties shall collectively not thereby be entitled to pursue Claims and recover Losses as provided in Section 2 of rescind this Agreement. Any Warranty Claim shall (if it has not been previously satisfied, settled or withdrawn) be deemed to have been withdrawn (and no new Warranty Claim may be made in respect of the facts giving rise to such withdrawn Warranty Claim) unless legal proceedings in respect of it have been commenced by both being issued and served within 12 months of notice having been given by the Purchaser pursuant to paragraph 3. No application for injunctive relief may be made in respect of the matter giving rise to such withdrawal Warranty Claim. A breach of Warranty which is capable of remedy shall not entitle the Purchaser to compensation in respect of such breach unless the Vendor is given written notice of such breach and such breach is not to the reasonable satisfaction of the Purchaser remedied within 30 days after the date on which such notice is served on the Vendor. The Vendor shall not be liable for any Warranty Claim to the extent that such Warranty Claim arises or, such Warranty Claim otherwise having arisen, is increased as a result of any change made after Completion in any accounting or taxation policies or practice, or the length of any accounting period for tax purposes, of the Company or any of the Subsidiaries, the Purchaser or any other company in the aggregate not in excess same group of companies as the lesser of (i) Company or the actual compensatory damages suffered by such KEI Indemnified Parties, Subsidiaries or (ii) $8,000,000the Purchaser.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect to any Claim for which the Sellers’ indemnification is sought under Section 1 of obligations, notwithstanding anything to the contrary set forth in this Agreement, the following provisions shall apply:
(1i) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, Except in the case of fraud or a breach of a Seller Fundamental Representation, the Sellers shall not have any obligation to indemnify any Purchaser Indemnified Party under Section 10.1(a) unless and until the aggregate not in excess amount of Losses that would otherwise be subject to indemnification pursuant to Section 10.1(a) exceeds $1,168,750 (the lesser of (i) “Deductible Amount”), whereupon the actual compensatory damages suffered by such KEI Purchaser Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties Party shall be entitled to look solely receive the aggregate amount of Losses from the first Dollar, regardless of the Deductible Amount;
(ii) Except in the case of fraud or a breach of a Seller Fundamental Representation or of the representations and warranties contained in Section 3.15, and subject to the other limitations in this Section 10.6, in no event shall the cumulative indemnification obligations of the Sellers under Section 10.1(a) in the aggregate exceed $10,000,000 (ithe “Cap”) a letter and in no event shall the indemnification obligations of credit in each Seller under Section 10.1(a) exceed such Seller’s pro rata percentage of the amount of $1,200,000 for recovery with respect Losses that would otherwise be subject to any Claim arising under indemnification pursuant to Section 1 of this Agreement; provided that 10.1(a) (in each case based on the parties agree that, upon the final, non-appealable resolution applicable percentage of the Accountant Claim, Estimated Purchase Price to which such letter of credit shall be reduced to $250,000 for the duration of the indemnification Seller is entitled as set forth in Section 1(b) hereof, and (ii) a letter of credit in on the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyMember Allocation Schedule.
(b) Subject to the other limitations set forth herein, with respect to any Losses suffered by any Purchaser Indemnified Party that would be subject to Section 10.1(a), if any portion of such Losses is not expressly excluded by the terms of the R&W Insurance Policy, then such Purchaser Indemnified Party shall use reasonable best efforts (which shall not include the obligation to commence litigation) to recover such portion under the R&W Insurance Policy prior to receiving payment for any claim against the Sellers hereunder for such portion; provided, that, for the avoidance of doubt, the Purchaser Indemnified Party is not required to assert any claims against the R&W Insurance Policy to the extent such claims are expressly excluded by the terms of the R&W Insurance Policy. Any claims that are expressly excluded from the R&W Insurance Policy and any claims that are otherwise not recoverable under the R&W Insurance Policy after the Purchaser Indemnified Party has satisfied its obligations in the immediately preceding sentence shall be deemed to be “Excluded Claims.”
(c) Subject to the other limitations imposed by this ARTICLE 10 including the Deductible Amount and the Cap (to the extent applicable):
(i) all indemnification claims under Section 10.1(a) (other than Excluded Claims and any claims as a result of a breach of any of the Seller Fundamental Representations or the representations and warranties in Section 3.15 (Taxes)): (A) shall first be paid and satisfied from the Escrow Account; and (B) shall then be paid and satisfied exclusively from the R&W Insurance Policy;
(ii) all indemnification claims under Section 10.1(a) that are Excluded Claims (other than claims as a result of a breach of any of the Seller Fundamental Representations or the representations and warranties in Section 3.15 (Taxes)): (A) shall first be paid and satisfied from the Escrow Account; and (B) shall then be paid and satisfied directly from the Sellers, severally and not jointly, but subject to the Cap; and
(iii) all indemnification claims under Section 10.1(a) as a result of a breach of any of the Seller Fundamental Representations or the representations and warranties in Section 3.15 (Taxes)): (A) shall first be paid and satisfied from the Escrow Account; (B) to the extent such claims are not Excluded Claims, shall then be paid and satisfied from the R&W Insurance Policy, and (C) to the extent such claims are Excluded Claims or to the extent the underlying Losses of such claims exceed the amounts recoverable under the R&W Insurance Policy, shall then be paid and satisfied directly from the Sellers, severally and not jointly. With respect to claims by a Purchaser Indemnified Party for Losses with respect to breaches of any Claim asserted by any third party as to of the matters set forth Seller Fundamental Representations or the representations and warranties in Section 2 of this Agreement3.15 (Taxes), in no event may the following provisions shall apply:
(1) The KEI Purchaser Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in seek recourse against the Sellers for an aggregate not amount in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, andPurchase Price, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, all indemnification payments made by the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawstaken into consideration when determining whether such cap has been met.
(d) Each KEI Indemnified Party With respect to the Purchaser’s indemnification obligations, notwithstanding anything to the contrary set forth in this Agreement:
(i) Except in the case of fraud or a breach of a Purchaser Fundamental Representation, the Purchaser shall use Commercially Reasonable Efforts not have any obligation to mitigate all indemnify the Sellers under Section 10.2(a)(i) unless and until the aggregate amount of Losses upon becoming aware that would otherwise be subject to indemnification pursuant to Section 10.2(a)(i) exceeds the Deductible Amount, whereupon the Sellers shall be entitled to receive the aggregate amount of Losses from the first Dollar, regardless of the Deductible Amount; and
(ii) Except in the case of fraud or a breach of a Purchaser Fundamental Representation, in no event shall the cumulative indemnification obligations of the Purchaser under Section 10.2(a)(i) in the aggregate exceed the Cap. For the avoidance of doubt, the indemnification obligations of the Purchaser for any nonperformance or other breach of any event covenant or circumstance that could reasonably agreement in Article VII by the Purchaser shall not be expected subject to give rise to any Losses that are indemnifiable or recoverable hereunder or the limitations set forth in connection herewiththis Section 10.6(d).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Ritchie Bros Auctioneers Inc)
Limitations on Liability. (a) With respect Notwithstanding anything to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided contrary in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI event a Contributee Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).Party has a claim for indemnification under Section 9.2 hereof:
(2a) KEI Neither a Contributee Indemnified Party nor a Contributor Indemnified Party will be entitled to indemnity under Section 9.2(a)(i), Section 9.2(a)(iii) or Section 9.2(b)(i) of this Agreement with respect to claims for Losses until the amount for any individual claim for Losses exceeds Fifty Thousand Dollars ($50,000) (the “Individual Basket Amount”) and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidentalaggregate amount for all claims for Losses that exceed the Individual Basket Amount exceeds Five Hundred Thousand Dollars ($500,000) (the “Aggregate Basket Amount”), indirectand thereafter, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Contributee Indemnified Parties shall be entitled to look solely to (i) a letter of credit in indemnity for the aggregate amount of $1,200,000 all individual claims for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution Losses in excess of the Accountant Claim, Individual Basket Amount applicable to each of such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policyindividual claims.
(b) With In the event a Contributee Indemnified Party is entitled to indemnity under Section 9.2(a)(i) (for breach of representations and warranties which survive one (1) year or less after the Closing Date) and Section 9.2(a)(iii), any such claim may be satisfied solely and exclusively against the Escrow Deposit. Therefore, the maximum aggregate liability of Contributors under Section 9.2(a)(i) (for breach of representations and warranties which survive one (1) year or less after the Closing Date) and Section 9.2(a)(iii) of this Agreement shall not exceed the Escrow Deposit, and Contributee Indemnified Parties shall have no further right to indemnity thereunder at such time as all cash or Contributee Units have been disbursed from the Escrow Account. Under no circumstance shall a Contributee Indemnified Party be entitled to recover an indemnity claim arising under Section 9.2(a)(i) (for breach of representations and warranties which survive one (year) or less after the Closing Date) and Section 9.2(a)(iii) of this Agreement directly against Contributors. In addition, in all circumstances, a Contributee Indemnified Party must first look to the Escrow Account with respect to an indemnity claim, including those arising under Section 9.2(a)(i) (for representations and warranties which survive longer than one (1) year after the Closing Date) and Section 9.2(a)(ii) of this Agreement, which are not limited to the Escrow Account.
(c) The amount of any Claim asserted Losses subject to indemnification under this ARTICLE IX shall be reduced or reimbursed, as the case may be, by any third party as to insurance proceeds, third party recoveries less the matters set forth in Section 2 of this Agreementcosts expended for such recoveries. Each Party shall, the following provisions and shall apply:
(1) The KEI cause their respective Indemnified Parties shall collectively be entitled to, use Reasonable Efforts to pursue Claims collect any amounts available under such insurance coverage and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by from such KEI other third party alleged to have responsibility. If a Contributee Indemnified Parties, Party receives an amount under insurance coverage or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of from such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy third party with respect to claims brought pursuant Losses that were the subject of indemnification under Section 9.2 at any time subsequent to Section 2 hereofindemnification provided thereunder, and, with respect to the amount of any deductible under then such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Contributee Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewithpromptly reimburse Contributors.
Appears in 1 contract
Samples: Asset Contribution Agreement (Eagle Rock Energy Partners L P)
Limitations on Liability. 10.1 The Buyer and Syniverse specifically acknowledge and agree that, if Completion shall have occurred, or if the Seller and the Target Group shall have satisfied their obligations under clause 11.3, no Member of the Buyer Group shall have any rights against any Member of the Seller Group or the Target Group or any present or former employee, shareholder, director or officer of any Member of the Seller Group or the Target Group in connection with this Agreement or its subject matter (a) With respect and to the extent that any Member of the Buyer Group would otherwise have any such rights, the Buyer and Syniverse hereby waive and shall procure that each Member of the Buyer Group shall waive such rights), and each of the Buyer and Syniverse undertakes that, if Completion shall have occurred, or if the Seller and the Target Group shall have satisfied their obligations under clause 11.3, neither it nor any Member of the Buyer Group shall make any claim against any Member of the Seller Group or the Target Group or any present or former employee, shareholder, director or officer of any Member of the Seller Group or the Target Group in connection with this Agreement or its subject matter. For the avoidance of doubt, the limitations set forth in this clause 10.1 shall not apply to any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess rights or claims of the lesser of Buyer Group, Seller Group or Target Group arising under or in connection with (i) the actual compensatory damages suffered by such KEI Indemnified Partiesfirst sentence of clause 12.1, (ii) clause 12.5, or (iiiii) $1,200,000; provided that no such liability limits apply to subsection 1(bthe Confidentiality and Non Solicitation Agreement dated as of the date hereof by and among the Buyer, Syniverse and certain members of the Seller Group as identified therein (the “Confidentiality and Non Solicitation Agreement”).
(2) KEI and 10.2 None of the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidentalWarranties, indirect, special, exemplary, punitive covenants or consequential damages.
(3) Anything to the contrary contained agreements in this Agreement notwithstandingor in any instrument delivered pursuant to this Agreement shall survive Completion, KEI except for covenants and agreements which, by their terms, are to be performed after Completion.
10.3 The Buyer has received or been given access by the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect Seller to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable all information it has requested with respect to the R&W Insurance Policy.
(b) With respect Target Group prior to any Claim asserted by any third party as to the matters set forth in Section 2 of entering into this Agreement, and has had sufficient time and opportunity to perform and has performed all such investigation and due diligence regarding the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively Seller, the Target Group and the business of the Target Group as it deems to be entitled necessary and sufficient prior to pursue Claims and recover Losses as provided in Section 2 of entering into this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Share Purchase Agreement (Syniverse Technologies Inc)
Limitations on Liability. (aAll representations and warranties of Buyer set forth in Paragraph 9(a) With respect to any Claim for which indemnification is sought under Section 1 of this AgreementAgreement (collectively, the following provisions shall apply:
(1“Buyer Representations”) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided the representations and warranties of Seller set forth in Section 1 Paragraph 9(b) of this AgreementAgreement (collectively, in the aggregate not in excess “Seller Representations”) shall be deemed to have been made as of the lesser Effective Date and again as of the Closing Date. Notwithstanding the foregoing, Seller’s representations and warranties contained in Paragraph 9(b) of this Agreement shall survive the Closing for a period of nine (i9) months after the actual compensatory damages suffered by such KEI Indemnified Parties, or Closing Date (iithe “Survival Period”) $1,200,000; provided that no such liability limits apply subject to subsection 1(bthe provisions of this Paragraph 9(c).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything . Notwithstanding anything to the contrary contained in this Agreement notwithstandingor in any exhibits attached hereto or in any documents executed or to be executed in connection herewith (collectively, KEI including this Agreement, said exhibits and all such documents, the Buyers agree “Purchase Documents”), it is expressly understood and agreed by and between the parties hereto that the KEI Indemnified Parties recourse of Buyer or its successors or assigns against Seller with respect to the alleged breach by or on the part of Seller of any representation, warranty, covenant, undertaking, indemnity or agreement contained in any of the Purchase Documents (collectively, “Seller’s Undertakings”) shall be entitled to look solely to (i) a letter of credit in be deemed waived unless Buyer has both delivered to Seller written notice that Buyer is seeking recourse under Seller’s Undertakings (the amount of $1,200,000 for recovery with respect “Recourse Notice”) prior to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution expiration of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(bSurvival Period and filed suit within sixty (60) hereofdays thereafter, and (ii) a letter of credit be limited to an amount not to exceed One Million Dollars ($1,000,000) in the aggregate for all recourse of Buyer under the Purchase Documents. Seller shall have no liability to Buyer for a breach or default of any of Seller’s Undertakings unless the valid claims for all such breaches and defaults collectively aggregate more than Fifteen Thousand Dollars ($15,000), in which event the full amount of $100,000 such, valid claims shall be actionable. Any Seller’s Undertakings for payment by KEI which a Recourse Notice has not been given, or for which such specific suit has not been commenced on or before the date sixty (60) days following the expiration of the deductible payable with respect Survival Period shall terminate and cease to be of any force or effect, and neither party shall have any right, remedy, obligation or liability thereunder. Any such representation or warranty for which such specific written notice has not been given, or for which such specific suit has not been commenced, on or before the R&W Insurance Policy.
Survival Period after the Closing Date shall terminate and cease to be of any force or effect and neither party shall have any right, remedy, obligation or liability thereunder. In the event, prior to Closing, Seller discovers that any of Seller’s Undertakings have materially and adversely changed, Seller shall give written notice thereof to Buyer (ba “Material and Adverse Change Notice”) With respect to any Claim asserted by any third party and Seller’s Undertakings shall be deemed qualified and amended as to the matters set forth in Section 2 such Material and Adverse Change Notice. Within three (3) days after receipt of this Agreementa Material and Adverse Change Notice (the Closing Date being hereby extended for such period, the following provisions shall apply:
if necessary to give Buyer adequate time to respond), Buyer, as its sole and exclusive remedy at law or in equity on account of such Material and Adverse Change Notice from Seller, all other rights and remedies being hereby waived, may elect by written notice to Seller either to (1i) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of terminate this Agreement, in which case the aggregate not in excess provisions of the lesser of (iParagraph 3(e) the actual compensatory damages suffered by such KEI Indemnified Parties, shall apply or (ii) $8,000,000.
(2) KEI accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Buyers Transactions without any right or remedy on behalf of each account thereof. Buyer’s failure to give timely written notice of such KEI Indemnified Parties hereby waive election to Seller shall constitute Buyer’s irrevocable election to accept and approve Seller’s Undertakings as so qualified and amended and proceed with the Transactions without any right to recover incidental, indirect, special, exemplary, punitive or consequential damagesremedy on account thereof.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Corporate Income Trust, Inc.)
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 of this AgreementFrom and after Closing, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything notwithstanding anything to the contrary contained in this Agreement notwithstandingbut except as set forth in Section 8.3(b), KEI and none of Seller, Buyer Parent or Buyer shall have any Liability under Section 8.2(a)(i), Section 8.2(a)(ii), Section 8.2(b)(i) or Section 8.2(b)(ii) (collectively, the Buyers agree “Relevant Provisions”) to the extent that the KEI Indemnified Parties Losses with respect thereto result from:
(i) in the case of Seller, any individual Claim (or matter giving rise to a Claim) where the Losses from such Claim and all related Claims against Seller are less than US$150,000 (it being agreed, for the purposes of this clause (i), that each Claim made in respect of a breach of Section 3.9 shall be entitled taken to look solely be related to each other Claim in respect of a breach of Section 3.9);
(ii) in the case of Buyer Parent and Buyer, any individual Claim (or matter giving rise to a Claim) where the Losses from such Claim and all related Claims against Buyer Parent or Buyer are less than US$150,000;
(iii) in the case of Seller, any individual Claim (or matter giving rise to a Claim) unless and until the amount that would be recoverable from Seller (but for this paragraph) in respect of such Claim when aggregated with other amounts so recovered or recoverable from Seller in respect of all other Claims under the Relevant Provisions (if any) exceeds US$5,000,000 (or its equivalent in any other currencies) and, in such case, for all such amounts;
(iv) in the case of Buyer Parent and Buyer, any individual Claim (or matter giving rise to a Claim) unless and until the amount that would be recoverable from Buyer Parent or Buyer (but for this paragraph) in respect of such Claim when aggregated with other amounts so recovered or recoverable from Buyer Parent or Buyer in respect of all other Claims under the Relevant Provisions (if any) exceeds US$5,000,000 (or its equivalent in any other currencies) and, in such case, for all such amounts;
(v) in the case of Seller, any Claim to the extent that the aggregate amount of such Claim together with all other Claims against Seller under the Relevant Provisions exceeds US$40,000,000 (or its equivalent in any other currencies);
(vi) in the case of Buyer Parent and Buyer, any Claim to the extent that the aggregate amount of such Claim together with all other Claims against Buyer Parent or Buyer under the Relevant Provisions exceeds US$40,000,000 (or its equivalent in any other currencies);
(vii) in the case of Seller, Buyer Parent or Buyer, any Claim for breach of a representation or warranty that does not expressly survive the Applicable Survival Period unless, on or before the expiry of the Applicable Survival Period, another Party shall have delivered to Seller a Claim Notice pursuant to Section 8.2(b) with respect to such Claim; or
(viii) in the case of Seller, Buyer Parent or Buyer, any Claim duly notified under clause (vii) above that has not previously been satisfied, settled or withdrawn prior to the expiry of the Applicable Survival Period or, if earlier, the date which is six (6) months after the Claim was duly notified under clause (vii), unless proceedings (including arbitral proceedings) in respect of such Claim shall previously have been issued and served on it (and any such unsatisfied, unsettled or unwithdrawn Claim shall become fully barred and unenforceable against it, and shall be deemed to have been withdrawn).
(b) The limitations set forth in Section 8.3(a) shall not apply to any Claim (or Losses relating to a Claim) arising or resulting from (i) a letter breach of credit Section 2.3 (Purchase Price; Assumed Liabilities), Section 2.6(a)(i) or (ii) (Deliveries), Section 2.7 (Deposit), Section 2.9 (Post-Closing Adjustment), Section 2.10 (Post-Closing Apportionment), Section 2.13 (Earn-Out), Section 2.14 (Committed Co-Locations), Section 5.5 (Non-Transferable Items), Section 5.6 (Specified Tower Permits in Seller’s Name), Section 5.10 (Specific Tower Representations: Seller Cure Period; Buyer Cure Period; Remedy for Breach), Section 5.11 (Co-Location Representation: Remedy for Breach), Section 5.12 (Excess Equipment), Section 5.18 (Non-Solicitation), Section 5.19 (Transfer Taxes) or Section 5.20 (Tax Prorations) or (ii) a breach of or inaccuracy in any of the Fundamental Representations. The limitations set forth in Section 8.3(a) shall not apply to any Claim (or Losses relating to a Claim) arising under or referred to in Section 8.2(b)(v).
(c) Notwithstanding any other provision of this Agreement, in no event shall the aggregate Liability of Seller to Buyer Parent or Buyer under or in connection with this Agreement (including Seller’s Liability for or in connection with (i) Claims (or Losses relating to a Claim) pursuant to this Article VIII or any certificate delivered pursuant to this Agreement (including the Seller’s Closing Certificate) and (ii) payment of the Returned Tower Purchase Price with respect to each exercise of the Tower Return Option or the Tower Call Option), exceed the amount of $1,200,000 for recovery the Final Up-Front Purchase Price received by Seller less the Subscription Amount.
(d) The amount of any and all Losses Seller or a Buyer Party is liable with respect to any Claim arising shall be net of any Tax benefit to which any Buyer Party (in the case of a Claim by Seller) or Seller (in the case of a claim by a Buyer Party) is entitled by reason of payment of such Liability (taking into account any Tax cost or reduction in such Tax benefits by reason of receipt of the such payment) and any amounts of any insurance proceeds, indemnification payments, contribution payments or reimbursements receivable by, or payable in kind to, it with respect to such Losses or any of the circumstances giving rise thereto. In connection therewith, if, at any time following payment by Seller or a Buyer Party of any amounts of Losses due under Section 1 of this Agreement; provided that , a Buyer Party (in the parties agree thatcase by a payment by Seller) or Seller (in the case of a payment by a Buyer Party) receives any insurance proceeds, upon indemnification payments, contribution payments or reimbursements relating to the finalcircumstances giving rise to such Losses, non-appealable resolution it shall promptly remit to the paying Party or Parties such proceeds, payments or reimbursements in an amount not to exceed the amount of the Accountant Claimcorresponding payment made by the paying Party or Parties. Each Party shall use (and shall cause its Affiliates to use) commercially reasonable efforts to collect the proceeds of any available insurance which would have the effect of reducing any such Losses (in which case the net proceeds thereof will reduce the Losses).
(e) Except in the case of fraud, such letter of credit in no event shall be reduced to $250,000 Seller have any Liability for Losses arising from the duration Purchased Assets (including the ownership or operation thereof) on or after the Closing or arising from the Swapped-in Tower Assets (including the ownership or operation thereof) after the Tower Swap Date. In no event shall any of the indemnification limitations set forth in this Section 1(b) hereof8.3 limit Buyer’s assumption of, and (ii) a letter of credit in Liability for, the amount of $100,000 for payment by KEI of the deductible payable Assumed Liabilities with respect to the R&W Insurance PolicyPurchased Assets or the Assumed Liabilities with respect to Swapped-in Tower Assets.
(bf) With Neither Seller nor the Buyer Parties shall have any Liability for Losses arising from breach of a representation or warranty that arises solely as a result of any Law promulgated by a Governmental Entity that comes into effect after the date hereof and that is retrospective in effect. Seller shall not have any Liability for Losses arising from breach of a representation or warranty that arises solely as a result of any act or omission to act by a Buyer Party or its Representatives. Neither Buyer Parent nor Buyer shall have any Liability for Losses arising from breach of a representation or warranty that arises solely as a result of any act or omission to act by Seller or its Representatives.
(g) Each Party shall use its commercially reasonable efforts to mitigate any Losses with respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively which it may be entitled to pursue Claims and recover Losses as provided in Section 2 make pursuant to this Agreement.
(h) Notwithstanding any other provision of this Agreement, in no event shall Seller have any Liability to Buyer Parent or Buyer under or in connection with this Agreement (including for or in connection with Claims (or Losses relating to a Claim) pursuant to this Article VIII or any certificate delivered pursuant to this Agreement (including the aggregate not in excess of Seller’s Closing Certificate), whether prior to or after the lesser of Closing, with respect to (i) any Short Lease Towers (or the actual compensatory damages suffered by such KEI Indemnified Parties, Purchased Assets with respect thereto) that become Pre-Closing Swapped-out Towers or (ii) $8,000,000.
any Pool Towers (2) KEI and or the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy Pool Tower Assets with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond thereto) that do not become Pre-Closing Swapped-in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsTowers).
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect to Notwithstanding any Claim for which indemnification is sought under Section 1 other provision of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims ASOT and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI R&B and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any Property Partnerships shall have the right to recover incidentalpayment under Sections 12.2(a) and 12.2(d) (other than breaches of any Tax Warranties and Covenants) and Sections 12.3(a) and 12.3(d) (other than breaches of any Tax Warranties and Covenants), indirectrespectively, specialonly if, exemplary, punitive or consequential damages.
(3) Anything and only to the contrary contained extent that, the party seeking indemnity and recovery thereunder shall have suffered actual losses as a result of any such breach of representation, warranty or covenant, which when aggregated with all other breaches, are in this Agreement notwithstandingan amount exceeding $3,000,000 (as may be adjusted below and excluding any actual losses asserted to have been suffered in connection with a breach or failure for which liquidated damages were paid); provided, KEI and that, once such threshold has been reached, the Buyers agree that the KEI Indemnified Parties indemnitee shall be entitled to look solely seek indemnification for the first $3,000,000 (as may be adjusted below and excluding any actual losses asserted to (ihave been suffered in connection with a breach or failure for which liquidated damages were paid) a letter in addition to any excess amounts; provided, further however, that in no event will either ASOT or R&B and the Property Partnerships be required to indemnify the R&B Group or ASOT, respectively, or otherwise be liable for amounts in excess of credit in the amount an aggregate cumulative recovery of $1,200,000 20,000,000 (as may be adjusted below and excluding any actual losses asserted to have been suffered in connection with a breach or failure for recovery which liquidated damages were paid) under Sections 12.3(a) and 12.3(d) or Sections 12.2(a) and 12.2(d), respectively; provided, further however that the limits and thresholds with respect to indemnification described in this Section 12.4 shall not apply with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant ClaimProperty Partnership’s or R&B’s Losses as a result of any breach of the representations, such letter warranties or covenants contained in Sections 5.1 (Authority; Enforceability), 5.5 (Non-Assessable Units and Common Shares) or 5.9 (Tax Status) or with respect to any of credit ASOT’s or ASN’s Losses as a result of any breach of the representations, warranties or covenants contained in Sections 4.16 (FIRPTA Representations), 4.24 (Taxes) or 6.11 (Tax Returns). In the event that this Agreement or any Contribution Agreement is terminated with respect to one or more of the Properties and/or the R&B Property, the amount of the foregoing monetary limitations shall be reduced to $250,000 for an amount equal to the duration product of (x) such monetary limitation multiplied by (y) a fraction (A) the numerator of which is the aggregate Contribution Value of such Properties and/or the R&B Property and (B) the denominator of which is the aggregate Contribution Value and/or the R&B Property of all of the indemnification Properties and the R&B Property and, notwithstanding the otherwise joint and several liability of the Property Partnerships and R&B set forth in Section 1(b) hereof12.2 above, and (ii) a letter of credit in if this Agreement or the amount of $100,000 for payment by KEI of the deductible payable applicable Contribution Agreement has been terminated with respect to the R&W Insurance Policy.
(b) With respect to any Claim asserted by any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess all of the lesser of (i) the actual compensatory damages suffered Properties directly or indirectly owned by such KEI Indemnified Parties, or (ii) $8,000,000Property Partnership then such Property Partnership shall have no obligation to provide indemnity under this Article XII.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(a) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.
Appears in 1 contract
Limitations on Liability. (a) With respect to any Claim for which indemnification is sought under Section 1 of this AgreementExcept as set forth in Sections 9.6(d) and (f) below, the following provisions shall apply:
rights of a Purchaser Indemnified Party to assert claims against the Escrow Fund under this Article 9 will be the sole and exclusive remedy of a Purchaser Indemnified Party for any such claims under Article 9 (1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery other than with respect to any Claim arising under Section 1 equitable remedies available to any Purchaser Indemnified Party) and no Shareholder will have any liability in excess of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution its pro rata share of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance PolicyEscrow Fund.
(b) With Notwithstanding anything contained here to the contrary, the Shareholders will not be obligated to indemnify the Purchaser Indemnified Parties under this Agreement unless and until the aggregate Losses subject to such indemnification collectively exceed $223,772 (the “Threshold”), whereupon such indemnification will be made by the Shareholders with respect to any Claim asserted by any third party as the aggregate amount of such Losses; provided, however, that the Threshold will not apply to the matters described in Sections 9.1(e), 9.1(f), 9.1(g), 9.1(h), or 9.1(i) hereof.
(c) Notwithstanding anything contained here to the contrary, the Purchaser will not be obligated to indemnify the Shareholders under this Agreement unless and until the aggregate Losses subject to such indemnification collectively exceed the Threshold, whereupon such indemnification will be made by the Purchaser with respect to the aggregate amount of such Losses. Except as set forth in Section 2 of this Agreement, the following provisions shall apply:
9.6 (1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided in Section 3(ae) and (bf) abovebelow, KEI, in no event will the Buyers and Purchaser’s Liability under this Agreement exceed the KEI Indemnified Parties may not proceed against Ridgewood, dollar amount that is equivalent to the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawsEscrow Fund amount.
(d) Each KEI The Securityholders shall be severally liable for any Losses of the Purchaser Indemnified Party shall use Commercially Reasonable Efforts Parties arising under (i) Section 9.1(a), solely as Section 9.1(a) relates to mitigate all Losses upon becoming aware a breach of any event representation or circumstance that could reasonably warranty of the Company in Section 3.2 (Authority and Enforceability), Section 3.4 (Capitalization and Ownership) and Section 3.15 (Tax Matters) (ii) Section 9.1(b), (iii) Section 9.1(f), (iv) Section 9.1(h), or (v) Section 9.1(i). The aggregate Liability of the Securityholders under this Section 9.6(d) shall be expected fifty percent (50%) of the aggregate amount of the Merger Consideration.
(e) The aggregate Liability of the Purchaser for a breach of Section 9.2(a), solely as Section 9.2(a) relates to give rise a breach of any representation or warranty of the Purchaser in Section 4.3 (Authority and Enforceability) shall be the aggregate amount of the Merger Consideration.
(f) Notwithstanding any other provision of this Agreement, nothing in this Agreement limits the Liability of a party to any Losses that are indemnifiable another party for fraud or recoverable hereunder or in connection herewithwillful misconduct.
Appears in 1 contract
Limitations on Liability. (a) With Neither VPI nor any of the other Sellers shall have any liability in respect to of any Claim for which indemnification is sought under Section 1 of this Agreement, the following provisions shall applyby Buyer unless:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory amount of the damages suffered by such KEI Indemnified Parties, or payable pursuant to that individual Claim exceeds US$250,000 (the "De Minimis Amount") (each a "qualifying claim"); and
(ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the aggregate amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that all qualifying Claims exceeds US$2,500,000 in which event the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit Seller shall only be reduced to $250,000 liable for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policyexcess.
(b) With respect The maximum aggregate liability of Sellers in relation to all Claims under this Agreement and any Claim asserted by claims under the Asset Transfer Agreement shall not in any third party as to the matters set forth in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, circumstances exceed US$60,000,000 in the aggregate not in excess of (the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000"Cap").
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
(c) Except as expressly provided Neither VPI nor any of the other Sellers shall have any liability in respect of any Claim which is based on any liability which is contingent unless and until such contingent liability becomes an actual liability and is due and payable but this paragraph shall not operate to avoid a claim made in respect of a contingent liability within the time limit specified in Section 3(a10.2 and containing such details as are specified in Section 10.2 provided that:
(i) legal proceedings in respect of the Claim have been commenced by being both issued and validly served on VPI, within six months of such contingent liability becoming an actual liability; and
(bii) above, KEI, any such contingent liability shall have become an actual liability within six months from the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation date of securities lawsclaim made in accordance with Section 10.2.
(d) Each KEI Indemnified Party Neither VPI not any of the other Sellers shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware be liable in respect of any event Claim if and to the extent that:
(i) the losses arising from the Claim are actually recovered by Buyer or circumstance that could reasonably be expected any of its Affiliates under any warranty (to give which the Claim does not relate) or other provision in this Agreement;
(ii) the Claim would not have arisen but for a breach by Buyer or any Designated Buyer of any of its obligations under this Agreement, the Asset Purchase Agreement or the Ancillary Agreements;
(iii) such Claim is caused by or increased by any voluntary act, omission, transaction or arrangement carried out by the Seller or any of its Affiliates at the written request, or with the written consent, of Buyer or any Designated Buyer before Closing or such Claim is caused by or results from any acts of Buyer or its Affiliates or Subsidiaries post-Closing, including, for the avoidance of doubt, a Buyer Tax Act;
(iv) such Claim is caused or increased by the passing of, or any change in, any law, rule, regulation or administrative practice of any Governmental Authority (including the interpretation thereof) or any change in the rate of any Tax, in each case, not actually (or prospectively) in effect at the date of this Agreement;
(v) the matter giving rise to the Claim is an amount for which Buyer or any Losses that of its Affiliates has a right of recovery against, or an indemnity from, a person other than the Sellers, whether under a provision of applicable law, insurance policy or otherwise howsoever and such losses arising from the Claim are indemnifiable actually recovered by Buyer or recoverable hereunder any of its Affiliates;
(vi) any Tax benefit is available to Buyer or to any of its Affiliates in connection with or in connection herewithrelation to any Claim;
(vii) to the extent it was taken into account in computing the Final Adjustment Amount;
(e) Neither VPI not any of the other Sellers shall have any liability in respect of any Claim for any exemplary, punitive, indirect, economic or consequential loss, loss of profit or loss of business opportunity or for diminution in value.
(f) The limitations set out in Section 10.2 and Section 10.5 shall not apply to Claims for breaches of the warranties in Section 5.1 and Section 5.2 of this Agreement and Section 8.1 and Section 8.2 of the Asset Transfer Agreement and any Claim for fraud.
Appears in 1 contract
Samples: Acquisition Agreement (Valeant Pharmaceuticals International)
Limitations on Liability. (a) With An Indemnifying Party ------------------------ shall not be liable in respect of any claim in connection with any Indemnifiable Losses (a "Relevant Claim") to any the extent that the Relevant Claim for which indemnification is sought under Section 1 of attributable (in whole or in part) to anything expressly provided to be done or omitted to be done pursuant to this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 1 of this Tax Allocation Agreement or any other Ancillary Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery with respect to any Claim arising under Section 1 of this Agreement; provided that the parties agree that, upon the final, non-appealable resolution of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and (ii) a letter of credit in the amount of $100,000 for payment by KEI of the deductible payable with respect to the R&W Insurance Policy.
(b) With An Indemnifying Party shall not be liable in respect to of any Relevant Claim asserted by any third party as to the matters set forth in Section 2 extent that the subject of this Agreement, the following provisions claim has been or is made good or is otherwise compensated for without cost to the Indemnitee. An Indemnitee shall apply:
(1) The KEI Indemnified Parties shall collectively not be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive otherwise obtain reimbursement or consequential damages.
(3) Anything to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree that the KEI Indemnified Parties shall be entitled to look solely to the R&W Insurance Policy with respect to claims brought pursuant to Section 2 hereof, and, with respect to restitution for more than the amount of any deductible under such insurance policy, to a letter of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and WarrantiesIndemnifiable Losses.
(c) Except as expressly provided In the event that an Indemnitee is entitled to claim under this Agreement, or under any Ancillary Agreement, in Section 3(a) and (b) above, KEIrespect of the same subject matter, the Buyers Indemnitee may claim under any one or all of such agreements but payments made under any Ancillary Agreement shall pro tanto satisfy and discharge any claim which is capable of being made under this Agreement in respect of the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities lawssame subject matter and vice versa.
(d) Each KEI Indemnified An Indemnifying Party shall use Commercially Reasonable Efforts not be liable in respect of a Relevant Claim to mitigate all Losses upon becoming aware of any event the extent that the Relevant Claim is attributable (in whole or circumstance that could reasonably be expected to give rise in part) to any Losses that are indemnifiable voluntary act or recoverable hereunder transaction carried out by or at the written request of an Indemnitee or any of their successors in connection herewithtitle or assigns on or after the Distribution Date other than any such act or transaction carried out in the ordinary and proper course of business.
(e) The provisions of this Section 4.07 shall apply notwithstanding anything else in this Agreement or any Ancillary Agreement to the contrary.
Appears in 1 contract
Limitations on Liability. (ai) With The rights of the Buyer Indemnified Parties to be indemnified pursuant to this Article 6 shall be the sole and exclusive remedy with respect to any Claim for which indemnification is sought under Section 1 breach by Holdback Participants of this Agreement, Agreement and the following provisions other matters set forth in Section 6.02. The Holdback Funds shall apply:
(1) The KEI be the sole recourse of the Buyer Indemnified Parties shall collectively to be entitled indemnified pursuant to pursue Claims and recover Losses as provided in Section 1 this Article 6 with respect to any breach of this Agreement, in the aggregate not in excess any representation or warranty of the lesser of (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $1,200,000; provided that no such liability limits apply to subsection 1(b).
(2) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(3) Anything to the contrary Holdback Participants contained in this Agreement notwithstanding, KEI and the Buyers agree maximum aggregate liability of the Holdback Participants for breaches of representations or warranties of Holdback Participants contained in this Agreement shall not exceed $3,750,000 (the “Indemnity Cap”); provided however, that (A) the maximum aggregate liability of the Holdback Participants for any indemnification claim with respect to breach of the representations and warranties made in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) or 3.24 (Tax Matters) may exceed the Indemnity Cap but shall not exceed an amount equal to the Purchase Price, (B) the maximum aggregate liability of the Holdback Participants for any indemnification claims with respect to breach of the representations and warranties made in Section 3.22(l) (Employee Benefit Plans) may not exceed an amount equal to the Indemnity Cap; provided, that the KEI maximum aggregate liability of the Sellers and Management Employees for any indemnification claims with respect to breach of the representations and warranties made in Section 3.22(l) (Employee Benefit Plans) may exceed the Indemnity Cap but shall not exceed an amount equal to the Indemnity Cap plus $1,000,000 and any such excess shall be payable by the Sellers and Management Employees pro rata, in proportion to the Additional Indemnity Percentage of such Seller or Management Employee as set forth on Schedule I attached hereto, and (C) the maximum aggregate liability of the Holdback Participants for any breach of any covenant of Holdback Participants contained in this Agreement and indemnification pursuant to Sections 6.02(a)(i)(B), 6.02(a)(ii) and 6.02(a)(iii) may exceed the Indemnity Cap but shall not exceed an amount equal to the Purchase Price. Subject to the limitations set forth in this Section 6, the total amount required to be paid by any Holdback Participant pursuant to Section 6.02(a) shall be limited in the aggregate to the value of the Purchase Price received by such Holdback Participant (including portions of future holdback payments to which such Holdback Participant may be entitled). The Buyer Indemnified Parties shall be entitled to look solely to (i) a letter of credit in the amount of $1,200,000 for recovery not seek direct indemnification from any Holdback Participant with respect to any Claim arising under Section 1 of indemnification pursuant to this Agreement; provided that the parties agree that, upon the final, non-appealable resolution Agreement prior to exhaustion of the Accountant Claim, such letter of credit shall be reduced to $250,000 for the duration of the indemnification set forth in Section 1(b) hereof, and Holdback Funds.
(ii) a letter of credit in From and after the amount of $100,000 for payment by KEI Closing, the right of the deductible payable Seller Indemnified Parties to be indemnified pursuant to this Article 6 shall be the sole and exclusive remedy with respect to any breach of any representation, warranty or covenant of Buyer contained in, or any other breach by Buyer of, this Agreement. The aggregate indemnity obligations of any Buyer Indemnifying Party pursuant to this Article 6 shall be uncapped.
(iii) Nothing in this Section 6.03(a) or elsewhere in this Agreement shall affect the R&W Insurance Policyparties’ right to specific performance or other similar non-monetary equitable remedy. The parties hereby waive any provision of any Applicable Law to the extent that it would limit or restrict the agreement contained in this Section 6.03(a).
(b) With respect to Without limiting the effect of any Claim asserted by any third party as to the matters set forth other limitation contained in Section 2 of this Agreement, the following provisions shall apply:
(1) The KEI Indemnified Parties shall collectively be entitled to pursue Claims and recover Losses as provided in Section 2 of this Agreement, in the aggregate not in excess of the lesser of Article 6: (i) the actual compensatory damages suffered by such KEI Indemnified Parties, or (ii) $8,000,000.indemnification provided for in Sections 6.02
(2a) KEI and the Buyers on behalf of each of such KEI Indemnified Parties hereby waive any right to recover incidental, indirect, special, exemplary, punitive or consequential damages.
(36.02(b) Anything shall not apply except to the contrary contained in this Agreement notwithstanding, KEI and the Buyers agree extent that the KEI aggregate Damages against which the applicable Indemnified Parties shall Party would otherwise be entitled to look solely be indemnified under this Article 6 exceeds $270,000 (the “Threshold”), in which event the Indemnified Party shall, subject to the R&W Insurance Policy with respect other limitations contained herein, be entitled to claims brought pursuant be indemnified from the first dollar thereof; provided however, that (A) the Threshold shall not apply to Section 2 hereof, and, with respect to the amount any breach of any deductible under such insurance policyrepresentation or warranty made by Sellers in Sections 3.01 (Corporate Existence and Power), to a letter 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of credit or bond in form reasonably satisfactory to KEI. Agreement Regarding Representations and Warranties
Shares), 3.19 (c) Except as expressly provided in Section 3(aFinders’ Fees) and (b) above, KEI, the Buyers and the KEI Indemnified Parties may not proceed against Ridgewood, the Sellers or their respective shareholders, directors, officers, managers, members, employees or agents other than on grounds constituting fraud or violation of securities laws.
(d) Each KEI Indemnified Party shall use Commercially Reasonable Efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith.3.22
Appears in 1 contract
Samples: Stock Purchase Agreement
