Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible. (b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration. (c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party. (d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required. (e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder. (f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 3 contracts
Samples: Equity Interest Purchase Agreement (Fortegra Group, LLC), Equity Interest Purchase Agreement (Fortegra Group, LLC), Equity Interest Purchase Agreement (Tiptree Inc.)
Limitations. 7.4.1 Owner’s total liability to Contractor under this Article 7 shall not exceed the Schedule Bonus Cap.
7.4.2 Notwithstanding anything contained herein to the contrary, if at any time Contractor’s Margin is reduced pursuant to Section 8.2 to:
(a) Subject to [***], then the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than aggregate amount of all Schedule Bonuses in respect of a breach of which Contractor has been paid or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, is entitled to be paid shall be entitled reduced by an amount equal to bring a claim for only those Losses in excess [***] of the Deductible.such aggregate amount;
(b) Notwithstanding anything to [***], then the contrary contained in this Agreement, (i) the maximum aggregate liability amount of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than all Schedule Bonuses in respect of a breach which Contractor has been paid or is entitled to be paid shall be reduced by an amount equal to [***] of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum such aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.amount;
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 [***], then the aggregate amount of all Schedule Bonuses in respect of any Loss which Contractor has been paid or is entitled to be paid shall be reduced by an amount equal to [***] of such aggregate amount;
(d) [***], then the aggregate amount of all Schedule Bonuses in respect of which Contractor has been paid or is entitled to be paid shall be reduced by an amount equal to [***] of such aggregate amount; provided that, for the avoidance of doubt, the reductions described in this Section 7.4.2 shall not be cumulative. If Owner has paid any Schedule Bonus(es) to Contractor prior to such reduction, then Owner may, without prejudice to Section 41.7, deduct from any amounts owed to Contractor hereunder an amount equal to the amount of such reduction.
7.4.3 Notwithstanding anything contained herein to the contrary, if Owner determines that Contractor has not or will not be entitled to payment for any Primary Milestone or Super Primary Milestone pursuant to and in accordance with Section 7.2 and Section 7.3, respectively, Owner shall have no obligation to pay to Contractor any Schedule Bonuses pursuant to this Agreement. If Owner has paid any Schedule Bonus(es) to Contractor prior to such determination, then Owner may, without prejudice to Section 41.7, deduct from any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect owed to such Losses less the Contractor hereunder an amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyall such Schedule Bonuses previously paid.
(d) In no event 7.4.4 For the avoidance of doubt, Contractor shall any Indemnifying Party not be liable entitled to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties payment in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, Schedule Bonus unless and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net until the achievement of the proceeds relevant Schedule Milestone is confirmed by a Certificate of any third-party insurance coverage actually received Schedule Milestone Achievement to be provided by Contractor together with the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)relevant Request for Payment.”
Appears in 3 contracts
Samples: Engineering, Procurement and Construction Agreement (Venture Global, Inc.), Engineering, Procurement and Construction Agreement (Venture Global, Inc.), Engineering, Procurement and Construction Agreement (Venture Global, Inc.)
Limitations. (a) Subject Notwithstanding anything to the additional contrary in Section 12.1(a), the following limitations set forth below to the indemnity obligations of the Company and the Sellers shall apply:
(i) Until the Initial Closing shall have occurred, the Company shall only be responsible for any Losses which are attributable to a breach or inaccuracy described in this Section 7.512.1(a)(i)(A) if all Losses attributable to such breaches or inaccuracies exceed $50,000, Seller in which case the Company shall be responsible for all Losses in excess thereof; provided, however, that the foregoing limitations shall not be liable apply to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable Losses attributable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect breaches or inaccuracies arising out of a breach of fraud or inaccuracy in any Fundamental Representations willful misrepresentation, or any breaches or inaccuracies of the representations and warranties contained set forth in Section 3.54.3 (Capitalization), Section 4.30 (No Broker) unless or Section 5.1 (Title to Interests) (it being understood that the Company and until Sellers, on a several and not joint basis, shall be responsible for such Losses from the Purchaser Indemnified Parties first dollar without the application of any threshold or deductible).
(ii) From and after the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% date and time of the Aggregate Consideration (Initial Closing, the “Deductible”Company shall only be responsible for any Losses which are attributable to a breach or inaccuracy described in Section 12.1(a)(i)(A) in the aggregateif all Losses attributable to such breaches or inaccuracies exceed $500,000, in which case the Purchaser Indemnified Parties Company shall be responsible for all Losses in excess thereof; provided, however, that the foregoing limitations shall not apply to Losses attributable to breaches or inaccuracies arising out of fraud or willful misrepresentation, or breaches or inaccuracies of the Seller Indemnified Partiesrepresentations and warranties set forth in Section 4.3 (Capitalization), as applicableor Section 4.30 (No Broker) (it being understood that the Company and Sellers, on a several and not joint basis, shall be entitled responsible for such Losses from the first dollar without the application of any threshold or deductible).
(iii) The Principal Sellers shall only be responsible for any Losses which are attributable to bring a claim breach or inaccuracy described in Section 12.1(a)(ii)(A) if all Losses attributable to such breaches or inaccuracies exceed $500,000, in which case the Principal Sellers shall be severally, and not jointly, in proportion to his or its Indemnification Percentage, responsible for only those all Losses in excess thereof; provided, however, that the foregoing limitations shall not apply to Losses attributable to breaches or inaccuracies arising out of fraud or willful misrepresentation, or breaches or inaccuracies of the representations and warranties set forth in Section 4.3 (Capitalization), Section 4.9 (Compliance with Laws), Section 4.18 (Title; Liens), Section 4.22 (Environmental Protection), Section 4.23 (Employee Benefit Plans), Section 4.30 (No Broker), Section 5.1 (Title to Interests) or Section 5.6 (No Broker) (it being understood that the Principal Sellers shall be severally, and not jointly, in proportion to his or its Indemnification Percentage, responsible for such Losses from the first dollar without the application of any deductible). The maximum aggregate liability of any Principal Seller for any Losses which are attributable to a breach or inaccuracy described in Section 12.1(a)(ii)(A) is the total purchase price paid to such Principal Seller under this Agreement. For clarity, if the Losses attributable to a breach of inaccuracy described in Section 12.1(a)(ii)(A) exceed $500,000, then the Principal Sellers shall be responsible, as aforesaid, for such Losses in excess of the Deductible$500,000, even though one or more Principal Sellers may only be responsible for a portion of such excess that is less than $500,000.
(biv) Notwithstanding anything The maximum aggregate liability of any Seller for any Losses which are attributable to a breach or inaccuracy described in Section 12.1(a)(ii)(A), or Section 12.1(a)(iii)(A) is seventy-five percent (75%) of the contrary contained in total purchase price paid to such Seller under this Agreement, (i) provided however that the maximum aggregate liability of any Seller or Purchaser under this Article VII for any Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of which are attributable to a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties of the Company contained in Section 3.5), as applicable, shall not exceed 20% of 4.9 (without regard to the Aggregate Consideration and (iischedules to this Agreement) is the maximum aggregate liability of total purchase price paid to such Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationAgreement.
(cv) Payments by an Indemnifying Party pursuant The Buyer Indemnitees will not be entitled to Section 7.2 indemnification for punitive damages, or Section 7.3 in respect for lost profits, consequential, exemplary or special damages; provided, however, that each Buyer Indemnitee shall be entitled to indemnification for punitive damages, or for lost profits, consequential, exemplary or special damages that are payable to third parties and constitute a part of such Buyer Indemnitee’s Losses; provided, further, that nothing contained herein shall be deemed to limit the right of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect Buyer Indemnitee to such indemnification for Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal attributable to the aggregate amount loss of value of such Buyer Indemnitee’s direct, or indirect interest in the recovery shall be promptly made to the applicable Indemnifying PartyCompany or its Subsidiaries.
(dvi) For purposes of clarification, each Principal Seller’s indemnity obligations under this Agreement will be several, and not joint, based on such Principal Seller’s Indemnification Percentage. For purposes of example, if there is an indemnity claim for a breach of a representation made by the Company at the Initial Closing, (subject to the limitations set forth herein), a Principal Seller will be responsible only for that portion of Losses relating to the indemnity claim based on such Principal Seller’s Indemnification Percentage of such Losses.
(vii) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect will the indemnity obligation of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (Seller exceed the amount of proceeds received by such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Seller hereunder.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (FVA Ventures, Inc.)
Limitations. Notwithstanding anything to the contrary in this Agreement:
(a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not no claim may be liable to the Purchaser Indemnified Parties made by any Indemnitee(s) for indemnification under pursuant to Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.511.2(a) unless and until the Purchaser Indemnified Parties or aggregate amount of Losses for which the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration Indemnitee(s) seeks to be indemnified pursuant to Section 11.2(a) exceeds $50,000 (the “DeductibleThreshold Amount”), at which time the Indemnitee(s) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim indemnification for only those all such Losses in excess of (including all Losses included within the Deductible.Threshold Amount);
(b) Notwithstanding anything the maximum aggregate indemnification obligation of each Seller for money damages pursuant to the contrary contained in this AgreementSection 11.2(a), other than with respect to a claim for indemnification arising from any breach or inaccuracy of any Fundamental Representations, shall be limited to (i) in the case of Xxxx and Xxxxxxxxxx, such Seller’s Pro Rata Share of the Escrow Amount, and in the case of Jadevaia, such Seller’s Pro Rata Share of the Escrow Amount plus the Earnout Payment (if any);
(c) the maximum aggregate liability indemnification obligation of each Seller or Purchaser under this Article VII for Losses indemnified under money damages pursuant to Section 7.2(a11.2(a) or Section 7.3(a) (other than in with respect of to a claim for indemnification arising from any breach of or inaccuracy in of any Fundamental Representations or any of pursuant to Sections 11.2(b)-(e) shall be limited in the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of aggregate to the Aggregate Consideration and (ii) the maximum aggregate liability of consideration actually received by such Seller or Purchaser for Losses indemnified under pursuant to this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.Agreement;
(cd) Payments no Seller shall be liable or have any indemnification obligation for the breach of any representations or warranty made by an Indemnifying Party any other Seller in Article IV of this Agreement, the breach of any covenant of any other Seller in this Agreement or for the actions or inaction of any other Seller in connection with this Agreement; and
(e) no Indemnitor shall have any right to indemnification pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party 11.2(e) with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal Losses to the aggregate amount of the recovery shall be promptly made extent (and only to the applicable Indemnifying Partyextent) such Losses are duplicative of Losses that were included in the Net Working Capital calculation and have previously been recovered by Purchaser through an adjustment to the Initial Closing Price at Closing.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 3 contracts
Samples: Stock Purchase Agreement (Intercloud Systems, Inc.), Stock Purchase Agreement (Genesis Group Holdings Inc), Stock Purchase Agreement (Genesis Group Holdings Inc)
Limitations. The following provisions of this Section 11.4 shall limit the indemnification obligations hereunder:
(a) Subject to the additional limitations set forth below in this Section 7.5, Seller The Indemnifying Party shall not be liable for any Indemnified Costs pursuant to this Article XI unless a written claim for indemnification in accordance with Section 11.2 or Section 11.3 is given by the Indemnified Party to the Purchaser Indemnifying Party with respect thereto on or before 5:00 p.m., Houston, Texas time, on or prior to the date that is eighteen (18) months after of the Closing Date; provided, however, that written claims for indemnification (i) for Indemnified Costs arising out of a breach of any representation or warranty contained in Article III, Section 4.1, Section 4.2, Section 4.3, Section 4.6, Section 4.7, Section 4.8, Section 5.1, Section 5.2 and Section 5.5 (the “Fundamental Representations”) may be made at any time and (ii) for Indemnified Costs arising out of a breach of any covenant may be made at any time.
(b) Except as set forth in this Agreement, an Indemnified Party will not be entitled to any Indemnified Costs with respect to any individual Claim that does not equal or exceed $150,000 (the “Individual Indemnity Threshold”) and all such Claims that equal or exceed the Individual Indemnity Threshold must collectively also exceed the Indemnity Deductible, and thereafter, the Indemnified Party shall only be entitled to indemnity for the amount in excess of the Indemnity Deductible, subject to the limitations set forth in this Agreement. Except as set forth below, the maximum aggregate liability of the SN Parties under Section 11.1 of this Agreement shall not exceed the Indemnity Cap. Except as set forth below, the maximum aggregate liability of Buyer under Section 11.1 of this Agreement shall not exceed the Indemnity Cap.
(c) The limitations set forth above in this Section 11.4 shall not apply to any claim for indemnification under Section 7.2(a11.1 with respect to any breach of (i) the Fundamental Representations or (ii) the indemnification obligations set forth in this Article XI of this Agreement.
(d) Each Party acknowledges and Purchaser shall not be liable agrees that, after the Closing Date, except as otherwise set forth in Article XII of this Agreement, Buyer’s and the other Buyer Indemnified Parties’ and the SN Parties’ and the other Seller Indemnified Parties’ sole and exclusive remedy with respect to the Seller Indemnified Parties for indemnification under Section 7.3(aCosts shall be in accordance with, and limited by, the provisions set forth in this Article XI.
(e) (other than in respect For purposes of determining any Losses resulting from a breach of or inaccuracy in any Fundamental Representations or any of the SN Parties’ representations and warranties contained in Section 3.5) unless and until the Purchaser Article III or Article IV of this Agreement for which Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall would be entitled to bring a claim for only those Losses indemnification, any dollar or materiality qualifications in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the SN Parties’ representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partydisregarded.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Sanchez Production Partners LP), Purchase and Sale Agreement (Sanchez Energy Corp), Purchase and Sale Agreement
Limitations. (a) Subject The rights to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a5.1(a) and Purchaser shall not be liable are subject to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.following limitations:
(ba) Notwithstanding anything to the contrary contained in this AgreementAgreement or otherwise, the parties expressly intend and agree as follows:
(i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect The amount of any Loss Damages incurred by a Purchaser Indemnified Party shall be reduced by the any amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any a Purchaser Indemnified Party with respect thereto (A) under any insurance coverage, (B) from any other Person alleged to be responsible therefor or (C) from any Loss for which any tax benefits to be received by such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Purchaser Indemnified Party.
(dii) In no event shall To the full extent permitted by applicable Law, and except for (A) any Indemnifying Party fraudulent act or fraudulent omission by Sellers or Purchaser or (B) any remedy for specific performance pursuant to Section 7.11, the indemnification provisions provided for in this Article 5 will be liable to any Indemnified Party the exclusive remedy for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect breach of any Third Party Claim for representation, warranty, covenant, or agreement contained in this Agreement. Sellers, Seller Indemnified Parties, Purchaser and Purchaser Indemnified Parties shall have no other or further right or remedy, whether in contract, tort or otherwise, or any right of rescission with respect to this Agreement, all of which indemnification hereunder is otherwise requiredSellers (on behalf of the Seller Indemnified Parties) or Purchaser (on behalf of the Purchaser Indemnified Parties) hereby expressly waives.
(eiii) Each Indemnified Party shall take, and cause use its Affiliates to take, all commercially reasonable steps best efforts to mitigate any Loss upon becoming aware Damages which are the subject of any event or circumstance Claims hereunder. Without limiting the generality of the foregoing, Purchaser agrees that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation it shall be Losses indemnified hereunder.
(f) All Losses indemnified assert and pursue all rights against the Novel Sellers pursuant to this the Novel Purchase Agreement, including pursuant to the Novel Escrow Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Mortgage.
Appears in 3 contracts
Samples: Quota Purchase Agreement, Quota Purchase Agreement (Myers Industries Inc), Quota Purchase Agreement
Limitations. (a) Subject to the additional limitations set forth below The rights of an Indemnified Party provided for in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties7.2(b), as applicable, shall not apply unless and until the aggregate Parent Losses or Company Losses, as the case may be, are determined to be entitled due to bring one or more Parent Indemnified Parties in the case of Claims against the Indemnifying Securityholders or one or more Company Indemnified Parties in the case of Claims against the Parent Indemnified Parties hereunder exceeds a claim cumulative aggregate of $150,000 (the “Deductible Amount”), in which event the Indemnified Parties shall, subject to the other limitations herein, be indemnified for only those all Parent Losses in excess or Company Losses, as the case may be, including the Deductible Amount; provided, however, that the Deductible Amount shall not apply, with respect to Losses arising out of or resulting from (x) any breach of the DeductibleParent Fundamental Representations or (y) (i) any breach of Company Fundamental Representations or (ii) the matter set forth in Section 7.2(b)(iii), (iv) or (v).
(b) Except for fraud and intentional misrepresentations, (x) (i) the aggregate indemnification obligations of Parent set forth in Section 7.2(a)(i) except for breaches of any Parent Fundamental Representation shall not exceed the value (as of Closing) of the Escrow (as defined in Section 7.5 below), (ii) the aggregate indemnification obligations of Parent (A) set forth in Section 7.2(a)(i) for breaches of Parent Fundamental Representations or (B) set forth in Section 7.2(a)(ii) shall not exceed the value (as of Closing) of the Parent Shares issued at Closing (including the Escrow), plus the value (if and when issued) of the Earnout Amount (the “Total Paid Consideration”) paid to the Indemnifying Securityholders pursuant to Article I and (y) (i) the aggregate indemnification obligations of the Indemnifying Securityholders set forth in Section 7.2(b)(i) except for any breach of any Company IP Representations and Company Fundamental Representation shall not exceed the number of shares remaining in the Escrow, (ii) the aggregate indemnification obligations of the Indemnifying Securityholders set forth in Section 7.2(b)(i) for breaches of any Company IP Representations shall not exceed (A) the number of Escrow Shares remaining in the Escrow plus (B) the shares constituting the Earnout Amount, to the extent earned and unissued to the Indemnifying Securityholders, (iii) the aggregate indemnification obligations of the Indemnifying Securityholders set forth in (A) Section 7.2(b)(i) for any breaches of Company Fundamental Representations, (B) Section 7.2(b)(ii), (C) Section 7.2(b)(iii), (D) Section 7.2(b)(iv) and (E) Section 7.2(b)(v) shall not exceed the number of shares issued pursuant to Section 1.6, the Escrow Shares and the number of shares constituting the Earnout Amount to the extent issued to the Indemnifying Securityholders (or, in each case if sold, the value of such shares at Closing).
(c) Notwithstanding anything to the contrary contained in this Agreementherein, no claim may be made for any Parent Losses related to or arising from (i) the maximum aggregate liability amount, value or condition of Seller any Tax asset or Purchaser under this Article VII for Losses indemnified under Section 7.2(aattribute (including, but not limited to, net operating loss carryforward or tax credit carryforward) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of Company arising prior to the Aggregate Consideration and Closing Date or (ii) the maximum aggregate liability ability of Seller Parent, the Company, the Surviving Corporation, the Final Surviving Entity or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its their Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event utilize such Tax asset or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderattribute following the Closing Date.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 3 contracts
Samples: Merger Agreement (CareDx, Inc.), Merger Agreement (CareDx, Inc.), Merger Agreement (CareDx, Inc.)
Limitations. (a) Subject Except with respect to the additional limitations set forth below in this Section 7.5Fraud or any breach or inaccuracy of any Fundamental Representation, Seller no amount of indemnity shall not be liable to the Purchaser Indemnified Parties for indemnification payable hereunder as a result of any claim arising under Section 7.2(a6.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under or Section 7.3(a6.3(a) (other than in respect connection with a breach or inaccuracy of a representation or warranty (i) with respect to any such individual breach of or inaccuracy, unless the aggregate Losses arising from such breach or inaccuracy in any Fundamental Representations or any of the representations exceeds [**] and warranties contained in Section 3.5(ii) unless and until the Purchaser Indemnified Parties Party has suffered, incurred, sustained or the Seller Indemnified Parties, as applicable, have incurred become subject to Losses in excess of 0.5% of the Aggregate Consideration [**] (the “DeductibleThreshold”) in the aggregate, in which case the Purchaser Indemnified Parties Party may bring a claim for all Losses in excess of such amount. The maximum aggregate liability of an Indemnifying Party under Section 6.2(a) or Section 6.3(a) in connection with a breach or inaccuracy of a representation or warranty shall not exceed (A) except with respect to Fraud or any breach or inaccuracy of any Fundamental Representation, an aggregate amount equal to [**], (B) with respect to any breach or inaccuracy of any Fundamental Representation, an aggregate amount equal to [**] and (C) with respect to Fraud, [**] (the Seller Indemnified Partiesforegoing clauses (A), (B) and (C), as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible“Cap”).
(b) Notwithstanding anything to the contrary contained in this AgreementNO 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 DAMAGES OR INDIRECT, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5)INCIDENTAL, as applicableCONSEQUENTIAL, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationPUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES OR ATTORNEYS FEES, COSTS OR PREJUDGMENT INTEREST THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF OR ANY LIABILITY RETAINED OR ASSUMED HEREUNDER, EXCEPT TO THE EXTENT PAYABLE PURSUANT TO ANY THIRD PARTY CLAIM.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided including incurring costs only to the minimum extent necessary to remedy the breach that any costs of gives rise to such mitigation shall Loss. If an Indemnified Party fails to use its commercially reasonable efforts to mitigate a Loss, the Losses to which such Indemnified Person is entitled to be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement ARTICLE VI shall be net of reduced to the proceeds of any third-party insurance coverage actually received by extent the Indemnifying Party demonstrates that the Indemnified Party (Party’s failure to use its commercially reasonable efforts to mitigate such Loss increased the amount of such proceeds determined net Loss.
(d) The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses under this Agreement. The calculation of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).any Loss subject to indemnification under this
Appears in 2 contracts
Samples: Asset Purchase Agreement (Gyroscope Therapeutics Holdings LTD), Asset Purchase Agreement (Gyroscope Therapeutics Holdings LTD)
Limitations. (a) Subject The Company shall only be bound to indemnify the E Investors if and when the aggregate amount owed to the additional limitations set forth below E Investors by reason of the implementation of this warranty exceeds EUR 200,000, said amount representing a threshold (seuil de déclenchement) and not a deductible (franchise), provided however, in the case of fraud, this Section 7.5, Seller threshold amount shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductibleapply.
(b) Notwithstanding anything In addition, said indemnification shall be limited to an aggregate amount corresponding to 50% of the contrary contained in price paid up by such E Investor for the E shares and/or the E Convertible Bonds subscribed pursuant this Agreement, (i) provided however that the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, above limitation shall not exceed 20% apply in case of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller fraud, willful misconduct or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationgross negligence.
(c) Payments by an Indemnifying Party pursuant Any Loss giving right to Section 7.2 or Section 7.3 in respect of indemnification under this Article 5 shall be determined as follows:
(i) any Loss shall be indemnified only once by the Company, and any Loss suffered by the Company shall be reduced by the amount any payment (net of any amounts actually recovered taxes and costs related thereto) received by the Indemnified Party under Company pursuant to an insurance policies, indemnities policy or other reimbursement arrangements otherwise to compensate for the said Loss.
(ii) the E Investors shall also be indemnified by the Company for the reasonable lawyer’s fees and costs which they may incur in connection with the enforcement of the provisions of this Article 5 with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party valid claim thereunder; and
(iii) with respect to any Loss for which any such Person has been indemnified hereundersuffered by the Company, then a refund equal to the aggregate amount of the recovery indemnification due by the Company to each E Investor pursuant to Section 5.1 above, shall be promptly made proportionate to the applicable Indemnifying Partypercentage of Series E Preferred Shares issued pursuant to this Agreement and held by such E Investor (including the Series E Preferred Shares likely to be subscribed upon conversion of the E Convertible Bonds subscribed by said E Investors by virtue of this Agreement) at the time of occurrence of the relevant Loss in the share capital of the Company.
(d) In no event The Company’s liability under this Article 5 shall any Indemnifying Party be liable to any Indemnified Party based on Section 5.1 (a) and (b) hereof. Approval by the E Investors, in their capacity as shareholders of the Company, of the Company’s annual accounts for any punitive or treble damagesfiscal year shall not constitute, other than indemnification for amounts paid or payable where applicable, any exception to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredthe foregoing.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Investment Agreement (Sequans Communications), Investment Agreement (Sequans Communications)
Limitations. (a) Subject Notwithstanding anything to the additional limitations set forth below in this contrary contained herein, no Buyer Indemnified Party or Seller Indemnified Party, as applicable, shall be entitled to be indemnified pursuant to Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a6.1(a)(i) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) 6.2(a)(i):
(other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5i) unless and until the Purchaser aggregate of all Losses for which the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration would, but for this paragraph (i), be entitled to indemnification hereunder exceeds on a cumulative basis $[*] (the “DeductibleIndemnity Threshold”) in the aggregate), in at which case the Purchaser point each Buyer Indemnified Parties Party or the Seller Indemnified PartiesParty, as applicable, shall be entitled to bring a claim be indemnified for only those the aggregate of all Losses in excess of the Deductible.Indemnity Threshold; and
(ii) unless the amount of an individual claim for Losses under Section 6.1(a)(i) or Section 6.2(a)(i) (aggregating all claims and Losses arising from substantially the same or similar facts as applicable to each of Section 6.1(a)(i) or Section 6.2(a)(i), as applicable) exceeds $[*], and no such claim shall be applied toward the Indemnity Threshold;
(b) Notwithstanding anything provided, however, that the foregoing provisions of Section 6.3(a) shall not apply with respect to the contrary contained in this Agreement, (i) the maximum aggregate liability any act of Seller fraud or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a any breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained set forth in Section 3.5Sections 3.1, 3.2(a), as applicable, shall not exceed 20% of or 3.13 (the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c“Specified Representations”)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments Other than in the case of any act of fraud (in which case the Buyer Indemnified Parties’ and the Seller Indemnified Parties’ rights shall not be limited by an Indemnifying Party anything set forth in this Article VI to the contrary), in no event shall the aggregate amount for which Buyer Indemnified Parties or Seller Indemnified Parties shall be indemnified and held harmless under Article VI exceed $[*] (the “Cap”).
(d) The amount of any Losses payable pursuant to Section 7.2 or Section 7.3 in respect of any Loss this Article VI shall be reduced by the to reflect any amount of any amounts actually recovered by the Indemnified Party under from a Third Party, including any insurance policiesprovider (less the cost to collect or recover such amount). If the Indemnified Party realizes any such amount after the date on which a payment pursuant to this Article VI has been made to the Indemnified Party, indemnities or other reimbursement arrangements with respect the Indemnified Party shall promptly make payment to the Indemnifying Party equal to such Losses less amount; provided that such payment shall not exceed the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly payment made to the applicable Indemnifying Party.
(dIndemnified Party pursuant to this Article VI. For the avoidance of doubt, this Section 6.3(b) In no event shall any Indemnifying Party not be liable construed to apply to any Indemnified Party for amounts recovered from any punitive self insurance, captive insurance vehicle, or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredsimilar arrangement.
(e) Each To the extent that a Tax Benefit due to any Loss actually is realized by an Indemnified Party due to Losses in the same taxable year in which such Indemnified Party received a payment pursuant to Section 6.1 or Section 6.2, as applicable, for such Loss, the Indemnified Party shall take, and cause its Affiliates to take, all commercially reimburse the Indemnifying Party the amount of such Tax Benefit within a reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, time after the Tax Return reflecting such Tax Benefit is filed with the applicable taxing authority; provided that any costs of such mitigation calculation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any thirda one-party insurance coverage actually received time determination by the Indemnified Party in connection with such Tax filing and shall not be subject to re-calculation or further claim for reimbursement by the Indemnifying Party thereafter. For purposes of this Section 6.3(e), a “Tax Benefit” means an amount by which the Tax liability of the Indemnified Party actually is reduced by a deduction, reduction of income, or a refund or credit, in other words the difference between (A) the aggregate amount of Taxes that the Indemnified Party would have been required to pay for the relevant Tax year if such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).Loss had not been incurred and
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cerecor Inc.), Asset Purchase Agreement (Cerecor Inc.)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller The Indemnifying Party shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser any settlement of any Proceedings effected without its written consent (which consent shall not be liable unreasonably withheld). If any settlement of any Proceeding is consummated with the written consent of the Indemnifying Party or if there is a Final Order for the plaintiff in any such Proceedings, the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Person from and against any and all Losses by reason of such settlement or judgment in accordance with, and subject to the Seller limitations of, the provisions of this Section 8. Notwithstanding anything in this Section 8 to the contrary, if at any time an Indemnified Parties Person shall have requested the Indemnifying Party to reimburse such Indemnified Person for indemnification under legal or other expenses in connection with investigating, responding to or defending any Proceedings as contemplated by this Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of 8, the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, Indemnifying Party shall be entitled to bring a claim liable for only those Losses in excess any settlement of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, any Proceedings effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by the maximum aggregate liability Indemnifying Party of Seller or Purchaser under this Article VII such request for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration reimbursement and (ii) the maximum aggregate liability Indemnifying Party shall not have reimbursed such Indemnified Person in accordance with such request prior to the date of Seller such settlement. The Indemnifying Party shall not, without the prior written consent of an Indemnified Person (which consent shall be granted or Purchaser for Losses indemnified under this Article VII (other than withheld in the Indemnified Party’s sole discretion), effect any settlement of any pending or threatened Proceedings in respect of Losses indemnified under Section 7.2(c)which indemnity has been sought hereunder by such Indemnified Person unless (a) or Article VIII shall not exceed such settlement includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability on the Aggregate Consideration.
(c) Payments claims that are the subject matter of such Proceedings without the payment by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount Indemnified Person of any amounts actually recovered by or the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount imposition of any costs non-monetary penalty or obligation and (b) does not include any statement as to or any admission of obtaining such recoveryfault, including any resulting increase in premium culpability or other costs a failure to act by or on behalf of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyPerson.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Commitment Agreement (Cooper-Standard Holdings Inc.), Commitment Agreement
Limitations. (a) Subject to Section 6.6, the additional following limitations set forth below in this Section 7.5, Seller shall not be liable will apply with respect to the Purchaser Indemnified Parties for indemnification under Section 7.2(aobligations of Buyer:
(i) and Purchaser Buyer shall not be liable to the Seller Indemnified Parties Indemnitees under Section 6.3(a)(i) until the aggregate amount of Damages incurred by the Seller Indemnitee(s) with respect to all claims of Seller Indemnitees made under Section 6.3(a)(i) exceeds the Threshold Amount; provided that once the aggregate amount of such Damages exceeds the Threshold Amount, then the Seller Indemnitees shall have the right to recover all Damages without regard to the Threshold Amount. No claim for indemnification by a Seller Indemnitee under Section 7.3(a6.3(a)(i) shall be asserted where the amount that would otherwise be payable by the Buyer hereunder relating to such claim or series of related claims is less than $50,000.
(other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5ii) unless and until the Purchaser Indemnified Parties or Any amounts payable to the Seller Indemnified PartiesIndemnitees in satisfaction of claims for indemnification pursuant to Section 6.3(a)(i) shall be made by Buyer; provided, as applicablethat the aggregate amount of all payments made by Buyer in satisfaction of claims for indemnification pursuant to Section 6.3(a)(i) shall not exceed the Cap.
(iii) The aggregate maximum indemnification obligation of Buyer for Damages under Sections 6.3(a)(i) and 6.3(a)(ii) shall not exceed, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the DeductiblePurchase Price Cap.
(biv) Notwithstanding anything in this Agreement to the contrary contained contrary, in no event shall the Buyer be required to indemnify, save and hold harmless the Seller Indemnitees under this Article VI or otherwise be liable in connection with this Agreement, the negotiation, execution or performance of this Agreement, or the transactions contemplated hereby, for any Damages that that (iA) are punitive or exemplary (except to the maximum aggregate liability extent such Damages are asserted against a Seller Indemnitee by a third party), (B) arise from any special plans or circumstances of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any Sellers not known to Buyer as of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% date of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party or (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)C) that are not otherwise reasonably foreseeable.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Sabre Corp)
Limitations. The following provisions of this Section 9.4 shall limit the indemnification obligations hereunder:
(a) Subject to the additional limitations set forth below in this Section 7.5, Seller The Indemnifying Party shall not be liable for any Indemnified Costs pursuant to this Article IX unless a written claim for indemnification in accordance with Section 9.2 or Section 9.3 is given by the Indemnified Party to the Purchaser Indemnified Parties Indemnifying Party with respect thereto on or before 5:00 p.m., Nashville, Tennessee time, on or prior to the first anniversary of the Closing Date; provided, however, that written claims for indemnification under Section 7.2(a(i) for Indemnified Costs arising out of (x) a breach of any Fundamental Representations or (y) an Excluded Liability or any Pro-Rated Item may be made at any time and Purchaser (ii) for Indemnified Costs arising out of a breach of any covenant may be made at any time prior to the expiration of such covenant according to its terms.
(b) An Indemnifying Party shall not be obligated to pay for any Indemnified Costs under this Article IX until the amount of all such Indemnified Costs exceeds, in the aggregate, $2,362,500, in which event Indemnifying Party shall pay or be liable for all such Indemnified Costs from the first dollar. The aggregate liability of an Indemnifying Party under this Article IX shall not exceed $31,500,000. The limitations in the previous two sentences shall not apply to Indemnified Costs to the extent such costs arise out of (i) a breach of any Fundamental Representations, (ii) an Assumed Liability, (iii) an Excluded Liability or any Pro-Rated Item or (iv) breach of any covenant or other agreement of the Indemnifying Party under this Agreement.
(c) Each Party acknowledges and agrees that, after the Closing Date, notwithstanding any other provision of this Agreement to the contrary, the Buyer’s and the other Buyer Indemnified Parties’ and each Seller’s and the other Seller Indemnified Parties’ sole and exclusive remedy with respect to the Indemnified Costs shall be in accordance with, and limited by, the provisions set forth in this Article IX. The Parties further acknowledge and agree that the foregoing is not the remedy for and does not limit the Parties’ remedies for matters covered by the indemnification provisions contained in the Ancillary Documents. Any indemnification obligation of any Seller to the Buyer Indemnified Parties on the one hand, or the Buyer to the Seller Indemnified Parties for indemnification under Section 7.3(a) (on the other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Partieshand, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled pursuant to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss IX shall be reduced by the an amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect equal to any Loss for which any indemnification recovery by such Person has been indemnified hereunder, then a refund equal Indemnified Parties pursuant to the aggregate amount other Ancillary Documents between the Parties to the extent that such other indemnification recovery arises out of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any same event or circumstance that would be reasonably expected togiving rise to the indemnification obligation of the Sellers or the Buyer, or doesrespectively, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Delek Logistics Partners, LP), Asset Purchase Agreement (Delek US Holdings, Inc.)
Limitations. (a) Subject No amounts shall be payable as a result of Losses from any claim arising pursuant to the additional limitations set forth below in this Section 7.5, Seller shall not be liable Agreement unless such Losses exceed $25,000 (any claim involving Losses equal to the Purchaser Indemnified Parties for indemnification or less than such amount being referred to as a “De Minimis Claim”) or any other claim arising under Section 7.2(a) and Purchaser shall not be liable this Agreement relating to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect a breach or alleged breach of a breach of representation or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) warranty unless and until the Purchaser Buyer Indemnified Parties have suffered, incurred, sustained or the Seller Indemnified Parties, as applicable, have incurred become subject to Losses referred to in this Agreement in excess of 0.5% of the Aggregate Consideration (the “Deductible”) $500,000 in the aggregateaggregate (not taking into account any De Minimis Claims), in which case the Purchaser Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to may bring a claim for only those all Losses in excess of such amount. Nothing in the Deductiblepreceding sentence shall apply to, or in any way limit the obligations of, an Indemnifying Party (a) under Section 12.05 to pay all reasonable defense costs in respect of third-party claims, (b) with respect to any Excluded Liabilities of which Judbury is the obligor or (c) any and all Employment Liabilities arising from or incurred by reason of any claims made under the Transfer Regulations, or otherwise, by any Irish Employee against the Buyer Indemnified Parties, provided however that notwithstanding anything to the contrary in this Agreement, no amount shall be payable in connection with pre-closing breaches of covenants until Losses resulting from pre-closing breaches of covenants exceed $25,000, in which case the Buyer Indemnified Parties may bring a claim for the full extent of such Losses. The maximum collective liability of the Sellers and the Indemnifying Entity under this Agreement shall not exceed 10% of Purchase Price in the aggregate (the “Indemnity Amount”). No amounts shall be payable as a result of any De Minimis Claims or any claim arising under Section 12.02 unless and until the Seller Indemnified Parties have suffered, incurred, sustained or become subject to Losses referred to in this Agreement in excess of $500,000 in the aggregate (not taking into account any De Minimis Claims), in which case the Seller Indemnified Parties may bring a claim for all Losses in excess of such amount and the maximum liability of the Buyer under this Agreement shall not exceed the Indemnity Amount. Notwithstanding the foregoing, the maximum collective liability of the Sellers and the Indemnifying Entity with respect to any claim for indemnity based on any of Sections 4.01, 4.02, 4.05, 4.06, 6.01, 6.02, 6.03, 6.18, 6.19(a), 7.01, 7.02, 7.05, and 8.01 (c), (f) and (o) or any Excluded Liability shall not be the Indemnity Amount but shall not exceed the Purchase Price. Notwithstanding the foregoing, the De Minimis Claim limitation set out above shall not apply to any Air France Reduction.
(b) Notwithstanding anything An Indemnifying Party is not liable to an Indemnified Party for any claim under or in relation to or arising out of this Agreement including a breach of a representation or warranty (a) to the contrary contained extent that the claim arises or is increased as a result of any change in applicable accounting standards after June 30, 2011 or any change in accounting policies applied on or after June 30, 2011 from those used by a party before the date of this Agreement, Agreement and (ib) if the maximum aggregate liability claim is as a result of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach any law or regulation not in force at the date of this Agreement (including any legislation or inaccuracy regulation which takes effect retrospectively and (c) to the extent that the claim or Loss in any Fundamental Representations or any relation to the claim is remediable, provided it is remedied to the satisfaction of the representations and warranties contained Indemnified Party, acting reasonably, within 60 days after the Indemnifying Party receives written notice of the claim in accordance with Section 3.512.05(a), as applicable, shall not exceed 20% provided that to the extent any such 60 day remedy period begins after the 12th month of the Aggregate Consideration and (ii) relevant 18 month survival period for the maximum aggregate liability of Seller relevant representation, warranty or Purchaser covenant, the remaining six month survival period shall be tolled for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationsuch remedy period.
(c) Payments Where an Indemnified Party is or may be entitled to recover from some other person any sum, including by an Indemnifying Party pursuant to Section 7.2 way of contract, indemnity, under a policy of insurance or Section 7.3 otherwise, in respect of any Loss shall be reduced by matter or event which could give rise to a claim under this Agreement, the Indemnified Party must use its reasonable endeavors to recover that sum before making the claim, keep the Indemnifying Party informed of the conduct of such recovery; and reduce the amount of any amounts actually recovered subsequent claim against the Indemnifying Party for the same or similar Loss by the Indemnified Party under amount recovered, provided, however, this provision shall not apply to representation and warranty insurance policiesobtained by the Buyer, indemnities or other reimbursement arrangements with respect to such Losses less if any. If the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person delayed until after the claim has been indemnified hereunderpaid by the Indemnifying Party, then a refund equal the recovered amount must be paid to the aggregate amount Indemnifying Party after deduction of all reasonable costs and expenses of the recovery shall be promptly made to the applicable Indemnifying Partyrecovery.
(d) In no event shall An Indemnified Party must take all reasonable action to mitigate any Loss suffered for which a claim could be made. Nothing in this Agreement restricts or limits any general obligation at law to mitigate any Loss or damage. If an Indemnified Party does not comply with this obligation where such compliance would have mitigated the Loss, the Indemnifying Party will not be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for the amount by which indemnification hereunder is otherwise requiredthe Loss would have been reduced.
(e) Each The sole remedies of the Buyer Indemnified Party shall takeParties in connection with the sale and purchase of the Capital Interests, Loan Notes and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would Aviation Loans will be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderas set out in this Agreement.
(f) All Each of the parties to this Agreement acknowledges, and represents and warrants to each other party that is has neither made nor given, nor relied upon, any representation, warranty, promise or undertaking, statement or conduct in entering into or agreeing to the terms and conditions of this Agreement except those representations and warranties as expressly set out in this Agreement and except as set forth herein, the Sellers are selling the Companies on an “as is, where is basis” and to the fullest extent allowed by law, disclaim all other warranties, representations and guarantees, whether express or implied.
(g) Except with respect to Losses indemnified actually awarded or otherwise payable by any Indemnified Party pursuant to a third party claim brought against an Indemnified Party, no Indemnified Party shall be entitled to indemnification pursuant to this Agreement shall be net Article 12 for lost profits, punitive damages, exemplary damages, special damages or similar damages (including damages calculated as or based on a multiple of the earning or lost proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereofprofits or similar methodology).
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Fly Leasing LTD)
Limitations. (a) Subject Except for Losses based on (i) fraud or (ii) arising in connection with any Indemnification Claim based on any of the Fundamental Representations or the IP Representations, the aggregate liability of each Company Escrow Party pursuant to Section 8.2(a)(i) shall be limited to an amount equal to their Pro Rata Share of the Escrow Amount. For Losses (A) based on fraud committed by the Company or (B) arising in connection with any Indemnification Claim based on (1) a breach of any of the Fundamental Representations pursuant to Section 8.2(a)(i) or (2) Sections 8.2(a)(ii) through 8.2(a)(ix), inclusive, the aggregate liability of each Company Escrow Party shall be limited to an amount equal to the additional limitations sum of the portion of the Merger Consideration which has been paid to such Company Escrow Party plus the portion of the Merger Consideration that is payable to such Company Escrow Party, including such Company Escrow Party’s Pro Rata Share of the Escrow Amount (except, with respect to fraud committed by the Company, to the extent set forth below below). For Losses arising in this connection with any Indemnification Claim based on a breach of any of the IP Representations, the aggregate liability of each Company Escrow Party pursuant to Section 7.58.2(a)(i) shall be limited to 20% of the sum of the portion of Merger Consideration which has been paid to such Company Escrow Party plus the portion of the Merger Consideration that is payable to such Company Escrow Party, Seller including such Company Escrow Party’s Pro Rata Share of the Escrow Amount. For Losses based on fraud by a Company Escrow Party or in which a Company Escrow Party participated, caused or had actual knowledge of at the time of its occurrence, the aggregate liability of such Company Escrow Party pursuant to Section 8.2 shall be unlimited. In the case of any Indemnification Claim arising out of Section 8.2(a)(i), or Section 8.3(a), as applicable, the Company Escrow Parties or Parent, as applicable, shall not be liable obligated to indemnify the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Parent Indemnified Parties or the Seller Company Indemnified Parties, as applicable, have incurred until the total amount of Losses in excess of 0.5% of with respect to the Aggregate Consideration (aforementioned claims that the “Deductible”) in the aggregate, in which case the Purchaser Parent Indemnified Parties or the Seller Company Indemnified Parties, as applicable, are entitled to recover exceeds $350,000 (the “Threshold”). If such Losses exceed the Threshold, then the Indemnifying Party shall be entitled responsible to bring a claim indemnify the Parent Indemnified Parties or the Company Indemnified Parties, as applicable, for only those all Losses without regard to the Threshold. Notwithstanding the foregoing, this paragraph shall in excess of no way limit, and the DeductibleThreshold shall not apply to, the Parent Indemnified Parties’ right to indemnification for Losses arising in connection with any Indemnification Claim based on fraud.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum The aggregate liability of Seller or Purchaser Parent to all Company Indemnified Parties under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate be limited to an amount equal to Merger Consideration.
(c) Payments by Any Person against whom an Indemnification Claim is being asserted (an “Indemnifying Party pursuant Party”) shall not be obligated to Section 7.2 or Section 7.3 in respect indemnify and hold harmless any Person claiming indemnification under this Article VIII (an “Indemnified Party”) after the expiration of any Loss applicable Survival Period unless a Claim Notice with respect to such Indemnification Claim shall be reduced by the amount of any amounts actually recovered have been given by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal prior to the aggregate amount expiration of the recovery shall be promptly made to the applicable Indemnifying PartySurvival Period.
(d) In no event The obligations of each Company Escrow Party under Section 8.2 shall be satisfied, first, from the Escrow Amount. If the full amount of the Escrow Amount is paid to Parent in satisfaction of Indemnification Claims, any Indemnifying Party additional liability of the Company Escrow Parties under Section 8.2 shall be liable satisfied from other assets of the Company Escrow Parties, including by offset of amounts not yet paid by Parent under this Agreement or any other Operative Document. The aggregate value of Indemnification Claims paid to any the Parent Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable Parties shall be deemed to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredreduce the Merger Consideration.
(e) Each The amount of any Losses for which indemnification is sought pursuant to this Article VIII shall be reduced by (i) the amount of any third party insurance proceeds actually recovered by any Indemnified Party shall takefrom any third party insurance carrier that is not an Affiliate of Parent, net of any increase in insurance premiums or other costs, including deductibles, incurred in connection with recovering such insurance proceeds; (ii) the amount of any indemnity or contribution actually recovered by any Indemnified Party from any third party that is not an Affiliate of Parent, net any costs incurred in connection with recovering any such amounts; provided, however, that the foregoing in no way obligates any Indemnified Party to purchase or maintain any third party insurance policy or to seek recovery of any such insurance proceeds or indemnity or contribution amounts from any Person; and cause (iii) the amount of any Tax benefit actually recognized by Parent or any of its Affiliates in the taxable year in which such Losses are incurred or the indemnification payment therefor is made pursuant to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of this Article VIII (as such mitigation shall be Losses indemnified hereunderactually recognized amount is determined in good faith by Parent).
(f) All Notwithstanding anything in this Article VIII to the contrary, Losses indemnified pursuant shall not include exemplary or punitive damages or consequential damages that are not reasonably foreseeable, except in each case to the extent awarded by a court, arbitrator or other Governmental Body to a third party and paid to such third party by an Indemnified Party.
(g) Solely for purposes of determining the amount of Losses under Sections 8.2 and 8.3 (but not for purposes of determining whether a breach of any representation, warranty, covenant or obligation has occurred), all qualifications and limitations as to materiality, Company Material Adverse Effect and words of similar import set forth in this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)disregarded.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Merger Agreement (Zillow Inc)
Limitations. (ai) Subject In the absence of fraud, (A) neither Hosting nor Networks shall have any Liability, nor be subject to any Claim, under Section 8(b)(i)(A) of this Agreement in respect of any misrepresentation or breach by Hosting or Networks of any representation or warranty set forth in this Agreement (1) with respect to any individual Liability or Claim, unless such Liability or Claim involves Losses in excess of $5,000 or (2) the amount of indemnifiable Losses, in the aggregate, exceeds $75,000, and then shall be liable only to the additional extent of such excess and (B) the aggregate obligation of Networks and Hosting to indemnify, defend and hold the VitalStream Indemnitees harmless hereunder shall be limited to $800,000. In the event a VitalStream Indemnitee seeks indemnification for Losses pursuant to this Section 8, such VitalStream Indemnitee's sole recourse shall be against the Escrow Shares, (as defined in the Escrow Agreement). Any recourse against the Escrow Shares shall be made based upon the Fair Market Value of the Escrow Shares as determined on the day immediately prior to the date on which a Claims Notice (as defined in the Escrow Agreement) is sent by VitalStream.
(ii) In addition to the limitations set forth below in Section 8(f)(i) of this Agreement, neither Hosting nor Networks shall have any Liability, nor be subject to any Claim, under this Agreement in respect of any Liability or Claim arising out of or related to (A) the methodology and billing practices utilized by Networks and Hosting to charge its customers for services (including bandwidth) other than Losses incurred by VitalStream based upon any third-party Claim brought against VitalStream with respect to such methodology and billing practices and (B) the failure by Networks or Hosting to transfer any of the assets set forth on Schedule 8(f)(ii).
(iii) In the absence of fraud, (A) VitalStream shall have no Liability, nor be subject to any Claim, under Section 8(c)(i)(A) of this Agreement in respect of any misrepresentation or breach by VitalStream of any representation or warranty set forth in this Agreement (1) with respect to any individual Liability or Claim, unless such Liability or Claim involves Losses in excess of $5,000 or (2) the amount of indemnifiable Losses, in the aggregate, exceeds $75,000, and then shall be liable only to the extent of such excess and (B) the aggregate obligation of VitalStream to indemnify, defend and hold Purchase Share Indemnitees harmless hereunder shall be limited to $800,000. In the event a Purchase Share Indemnitee seeks indemnification for Losses pursuant to this Section 7.58, Seller such Purchase Share Indemnitee's sole remedy shall be the issuance by VitalStream of additional shares of Common Stock to such Purchase Share Indemnitee with an aggregate Fair Market Value (as determined on the day immediately prior to the date on which a Purchase Share Indemnitee sends a notice of an indemnifiable Loss to VitalStream under this Section 8) equal to such indemnifiable Losses; provided, however, the aggregate number of shares of Common Stock VitalStream shall be required to issue pursuant to this Section 8 shall not be liable exceed a number of shares of Common Stock equal to the Purchaser Indemnified Parties number of Escrow Shares. Notwithstanding the foregoing, in the event a Purchase Share Indemnitee seeks indemnification for indemnification under Losses pursuant to this Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than 8 in respect of a breach by VitalStream or Buyer of Section 6(m) or inaccuracy in any Fundamental Representations or any Section 6(n) of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Partiesthis Agreement, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, such Purchase Share Indemnitee shall be entitled to bring a claim for only those Losses Cash from VitalStream in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Indemnifiable Losses.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Vitalstream Holdings Inc), Asset Purchase Agreement (Brekka Richard)
Limitations. (a) Subject The amount of any Losses payable pursuant to this Article VI shall be reduced to reflect any amount actually recovered by the Indemnified Party from a Third Party, including any insurance provider (less the cost to collect or recover such amount). If the Indemnified Party realizes any such amount after the date on which a payment pursuant to this Article VI has been made to the additional limitations set forth below Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party equal to such amount; provided that such payment shall not exceed the amount of the payment made to the Indemnified Party pursuant to this Article VI. For the avoidance of doubt, this Section 6.3(a) shall not be construed to apply to any amounts recovered from any self-insurance, captive insurance vehicle, or other similar arrangement.
(b) Notwithstanding anything in this Section 7.5Agreement to the contrary, neither Buyer nor Seller shall be liable for any punitive or exemplary damages or similar theory, except to the extent actually awarded in a Third Party Claim.
(c) Seller shall not be liable to under Section 6.1(a) unless the Purchaser aggregate Losses incurred by the Buyer Indemnified Parties with respect to all matters for which indemnification is to be provided under Section 7.2(a6.1(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration exceeds $250,000 (the “Deductible”) in the aggregate), in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall will be entitled to bring a claim liable under Section 6.1(a) for only those all Losses in excess of the Deductible.
(bd) Buyer shall not be liable under Section 6.2(a) unless the aggregate Losses incurred by the Seller Indemnified Parties with respect to all matters for which indemnification is to be provided under Section 6.2(a) exceeds the Deductible, in which case Buyer will be liable under Section 6.2(a) for all Losses in excess of the Deductible.
(e) The aggregate amount required to be paid by Seller under Section 6.1(a) or Buyer under Section 6.2(a) shall not exceed $2,250,000.
(f) The aggregate amount required to be paid by Seller under Section 6.1 or Buyer under Section 6.2 shall not exceed the Cash Consideration.
(g) The representations, warranties, covenants and agreements contained herein shall survive the Closing. Indemnification obligations under Section 6.1 with respect to breaches of representations and warranties shall continue with respect to all representations and warranties set forth in Article III, until the date that is two (2) years after the Closing Date, and indemnification obligations under Section 6.2 with respect to breaches of representations and warranties shall continue with respect to all representations and warranties set forth in Article IV, until the date that is six (6) months after the Closing Date; provided however, that with respect to the representations in Section 3.1, Section 3.2(a), Section 3.9 and Section 3.13, the Indemnification obligations shall continue for the applicable statute of limitations and the limitations in Section 6.3(c) and Section 6.3(e) shall not be applicable. The indemnification obligations under Section 6.1 and Section 6.2 with respect to breaches of covenants and agreements shall continue until the sixtieth (60th) day after the expiration of the applicable statute of limitations (taking into account any tolling periods or other extensions) bars any claims regarding a breach thereof. Notwithstanding anything to the contrary contained herein, if written notice of any claim for indemnification hereunder has been delivered in this Agreement, (i) accordance herewith prior to the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any expiration of the representations and warranties contained in Section 3.5)applicable period set forth above, as applicable, the indemnification obligations shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements continue with respect to such Losses less claim until the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, final resolution and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs satisfaction of such mitigation shall be Losses indemnified hereunderclaim in accordance with the provisions of this Article VI.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cerecor Inc.), Asset Purchase Agreement (Aytu Bioscience, Inc)
Limitations. (a) Subject Except with respect to Special Claims, the additional limitations set forth below in this Section 7.5, Seller Buyer Indemnified Parties shall not be liable entitled to indemnification pursuant to this Article X unless the Purchaser Buyer Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller have sustained Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of $4,600,000 in the Aggregate Consideration aggregate (the “Deductible”) in the aggregate), in which case the Purchaser Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those all sustained Indemnified Losses that are in excess of the DeductibleDeductible (subject to Section 10.5(b) below); provided, however, that Buyer Indemnified Parties shall only be entitled to indemnification under this Article X for any individual Indemnified Loss (or group or series of Indemnified Losses based on substantially similar sets of facts or circumstances) in excess of $100,000 (a “Qualifying Loss”) and only the amount of Qualifying Losses shall count in the calculation and determination of whether the Deductible has been satisfied.
(b) Notwithstanding anything to the contrary contained in this Agreementherein, (i) the maximum aggregate liability of Seller or Purchaser Buyer Indemnified Parties shall not be entitled to indemnification under this Article VII for Agreement with respect to any Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of to the extent that such Losses are already a breach part of or inaccuracy in any Fundamental Representations or any reflected as part of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Final Merger Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Topco Closing Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the The amount of any Indemnified Losses for which indemnification is provided under this Article X shall be net of (i) any amounts actually recovered by the Indemnified Party under insurance policies, indemnities policies or other reimbursement arrangements otherwise with respect to such Indemnified Losses less (other than the R&W Insurance Policy) and (ii) the amount of any costs Tax benefit recognized in cash by the Indemnified Party or any of obtaining its Affiliates in connection with such Indemnified Loss or any of the circumstances giving rise thereto; provided that to the extent a Tax benefit is received after an Indemnified Loss is paid to the Indemnified Party shall be required to remit such Tax benefit to the Indemnifying Party for payment; it being understood that the Shareholders’ Representative should be entitled to receive such amount on behalf of the Earthbound Holders and distribute such amount in accordance with the Residual Percentages. The Indemnified Parties shall use commercially reasonable efforts to pursue any available insurance policies or collateral sources, and in the event the Indemnified Parties receive any recovery, the amount of such recovery (which shall be net of any increases in premiums or deductibles relating thereto and expenses reasonably incurred by such Indemnified Parties in collecting such amount including reasonable attorney’s fees) shall be applied first, to refund any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is payments made by the Indemnifying Parties in respect of indemnification claims pursuant to this Article X which would not have been so paid had such recovery been obtained prior to such payment, and second, any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal excess to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyBuyer Indemnified Parties.
(d) In Notwithstanding anything contained in this Agreement to the contrary, no event Buyer Indemnified Party shall have any Indemnifying Party be liable right to indemnification under this Article X with respect to any Indemnified Party Losses to the extent such Losses (i) relate to any item included on, or is a liability accrued for any punitive on or treble damagesreserved or reflected in, other than indemnification for amounts paid the Balance Sheet or payable to third parties the Estimated Closing Statement; (ii) arise out of changes after the Closing Date in respect applicable Law or interpretations or applications thereof; or (iii) are duplicative of any Third Party Claim for which indemnification hereunder is otherwise requiredLosses that have previously been recovered hereunder.
(e) Each Indemnified Party shall takeExcept with respect to any Losses resulting from a breach of any Tax Representation or any matter referred to in Section 10.2(a)(iii), and cause its Affiliates each of the parties agrees to take, take all commercially reasonable steps to mitigate any Loss its respective Indemnified Losses to the extent reasonably possible upon becoming aware of the occurrence of any event or circumstance condition that would reasonably be reasonably expected toto result in Losses that are indemnifiable hereunder. In addition, Buyer acknowledges and agrees that the Earthbound Holders shall not have any liability under any provision of this Agreement to the extent that the applicable Loss was caused by actions taken by or does, give rise thereto, provided that on behalf of any costs of such mitigation shall be Losses indemnified hereunderBuyer Indemnified Party after the Closing.
(f) All Notwithstanding anything in this Agreement to the contrary, Indemnified Losses indemnified shall not include (i) any consequential or punitive damages, unless such Indemnified Losses are (A) recovered from an Indemnified Party pursuant to the Third-Party Claim or (B) solely in the case of consequential damages, the natural, probable and reasonably foreseeable result of the event that gave rise to such Indemnified Losses or (ii) any damages based on multiples of earnings or other financial metrics or loss of reputation or business opportunity.
(g) Upon payment in full of any indemnification claim pursuant to this Agreement Article X, the Indemnifying Party shall be net subrogated to the extent of such payment to the rights of the proceeds Indemnified Party against any Person with respect to the subject matter of such claim. The Indemnified Parties shall permit the Indemnifying Party to use the name of such Indemnified Parties in any transaction or in any action or proceeding or other matter involving any of such rights, and the Indemnified Parties shall assign or otherwise reasonably cooperate with the Indemnifying Parties, at the cost and expense of the Indemnifying Parties, to pursue any claims against, or otherwise recover amounts from, any Person liable or responsible for any Losses for which indemnification has been received pursuant to this Agreement. If any indemnification payment is received by any Indemnified Party from an Indemnifying Party pursuant to this Article X, and such Indemnified Party later receives a payment from another Person in respect of the identical Losses, such Indemnified Party shall promptly pay to such Indemnifying Party or its designee an amount equal to the lesser of (a) the actual amount of such payment received from such other Person and (b) the actual amount of the indemnification payment previously paid by such Indemnifying Party with respect to such Losses.
(h) For purposes of determining the failure of any third-party insurance coverage actually received representations or warranties to be true and correct and calculating Losses hereunder, in each case solely for purposes of indemnification under this Article X, any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be disregarded; provided that materiality qualifications shall not be disregarded for purposes of (i) the definition of Permitted Liens, and any use of thereof in this Agreement, (ii) Section 4.6, (iii) Sections 4.9(b) and (c) (including references to materiality in Section 7.1 for the purposes of applying Section 4.9(c)), (iv) Section 4.12(b), (v) Section 4.15(a), the definition of “Material Contracts, and the use thereof in this Agreement, (vi) Sections 4.16(b)(iii) and (viii), (vii) Section 4.18, (viii) Section 4.19(b); (ix) Sections 4.21(f) and the definition of “Environmental Permits”, and the use thereof in this Agreement, (x) Section 4.24 or (xi) Sections 7.1(a)-(n).
(i) No Indemnified Party shall have any right to assert any claim against any Indemnifying Party with respect to any alleged Loss, cause of action or other claim if such alleged Loss (a) is a possible or potential Loss, cause of action or claim that the Indemnified Party believes may be asserted rather than an actual Loss that has been paid or incurred by the Indemnified Party or a Third Party Claim that has actually been asserted against the Indemnified Party or (b) is with respect to which Indemnified Party has taken action (or caused action to be taken) to accelerate the amount time period in which such matter is asserted or payable.
(j) The Seller Group shall have no right of such proceeds determined net contribution or other recourse against the members of all costs the Company Group or their respective members, directors, officers, employees, affiliates, agents, attorneys, representatives, assigns or successors (other than a right of recovery thereofcontribution from the other members of the Seller Group, deductibles or retentions thereunder and increases in premiums their capacity as a result thereof)member of the Seller Group) for any Third-Party Claims asserted by the Buyer Indemnified Parties, it being acknowledged and agreed that the covenants and agreements of the Company Group are solely for the benefit of the Buyer Indemnified Parties.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (WHITEWAVE FOODS Co)
Limitations. (a) Subject The amount of any Losses for which either any Seller or Buyer, as the case may be, is liable shall be reduced by (i) the amount of any insurance proceeds actually paid to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Buyer Indemnified Parties for indemnification under Section 7.2(a) Party and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification Party, as applicable, and (ii) the aggregate amount actually recovered under Section 7.3(aany Assigned Contract (if applicable) (or any other than in respect of a breach of indemnity agreement, contribution agreement, or inaccuracy in any Fundamental Representations or other Contract between any of the representations Indemnified Parties, on the one hand, and warranties contained any third Person, on the other hand, with respect to such Losses. Notwithstanding the other provisions of this Article XII, Sellers shall not have any indemnification obligations for any individual Losses arising from or in connection with Section 3.512.2(a)(i) unless and until the Purchaser aggregate amount of all such Losses, together with the amount of all such Losses under the Other Acquisition Agreement, exceed $2,879,000 (the “Deductible”), in which event Sellers shall be required to pay the full amount of such Losses to the extent exceeding the Deductible, but only up to a maximum aggregate amount (with respect to this Agreement, together with the full amount of such Losses paid or payable by Seller under the Other Acquisition Agreement) of $57,580,000 (the “Cap”); provided, that with respect to any claim to which any Buyer Indemnified Party may be entitled to indemnification under Section 12.2, Sellers shall not be liable for any individual or series of related Losses which do not exceed $100,000 and any Losses with respect thereto shall not be included in Losses for purposes of determining the Deductible or the Cap.
(b) In no event shall any party or any of its Affiliates be liable by reason of any breach of any representation, warranty, condition or other term of this Agreement or any duty of common law, for any punitive loss or damage and each party hereto agrees that it shall not make any such claim; provided that the foregoing does not limit any of the obligations or liability of any party or its Affiliates under Sections 12.2. and 12.3 with respect to claims of unrelated third parties.
(c) Neither Sellers nor Buyer shall have any Liability under this Agreement in respect of any Loss if such Loss would not have arisen but for (i) a change in legislation or accounting policies after the Closing or (ii) a change in any Law after the Closing or a change in the interpretation of any Law after the Closing as determined by a Governmental Entity. [****] = 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. Confidential treatment has been requested with respect to the omitted portions.
(d) For purposes of determining whether a failure of any representation or warranty made by any Seller or Buyer contained in this Agreement is true and accurate as of the Closing and for calculating the amount of Losses indemnifiable hereunder, any materiality, Material Adverse Effect or similar qualifications in such representation or warranty shall be disregarded.
(e) Except for claims based on fraud, the right of the Buyer Indemnified Parties or and the Seller Indemnified Parties under this Article XII shall be the sole and exclusive monetary remedy of the Buyer Indemnified Parties and the Seller Indemnified Parties, as applicablethe case may be, with respect to matters covered hereunder, including but not limited to claims relating to the Products, the Transferred Assets or Product Technology, Assumed Liabilities or Excluded Liabilities and no Indemnified Party shall have incurred Losses any other cause of action or remedy at law in excess equity for breach of 0.5% contract, rescission, tort, or otherwise against the other party arising under or in connection with this Agreement and the matters and transactions contemplated hereby. Without limiting the generality of the Aggregate Consideration (the “Deductible”) preceding sentence, except in the aggregatecase of specific performance and for claims based on fraud, no legal action sounding in which case the Purchaser Indemnified Parties contribution, tort, or the Seller Indemnified Partiesstrict liability (in each case, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller other than claims made or Purchaser under contemplated by this Article VII for Losses indemnified under Section 7.2(aXII) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations may be maintained by an Indemnified Party, or any of the representations and warranties contained in Section 3.5)its officers, as applicabledirectors, shall not exceed 20% other governing bodies, employees, equityholders, owners, Affiliates, representatives, agents, successors, or assigns, against Sellers or Buyer or any of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party their Affiliates with respect to any Loss matter that is the subject of Article XII, and Buyer and Sellers, for which themselves and the other Indemnified Parties and each of their respective officers, directors, other governing bodies, employees, equityholders, owners, Affiliates, representatives, agents, successors, and assigns, hereby waive any such Person has been indemnified and all statutory rights of contribution or indemnification (other than rights of indemnification hereunder, then a refund equal ) that any of them might otherwise be entitled to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall under any Indemnifying Party be liable Law with respect to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect matter that is the subject of any Third Party Claim for which indemnification hereunder is otherwise requiredthis Article XII.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Impax Laboratories Inc), Asset Purchase Agreement (Impax Laboratories Inc)
Limitations. (a) Subject Notwithstanding any other provisions of this Agreement to the additional limitations set forth below in this Section 7.5contrary, Seller shall not no claim may be liable to the Purchaser made by any Parent Indemnified Parties Party for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) any Warranty Breach (other than in respect of a claim arising from any breach of or inaccuracy in any Fundamental Representations or of any of the representations and warranties contained in Section 3.5Fundamental Representations, fraud or intentional misrepresentation) unless and until the Purchaser aggregate amount of Losses for which the Indemnified Parties or seek to be indemnified pursuant to Section 10.2(a) exceeds Twenty Thousand Dollars ($20,000), at which time the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Parent Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring indemnification for the amount of Losses that exceeds such amount. Notwithstanding any other provision of this Agreement to the contrary, for purposes of determining the Support Agreement Securityholders’ liability to the Parent Indemnified Parties and whether the foregoing threshold has been exceeded, Losses shall be deemed not to include a Loss or Losses from any individual claim or series of related claims for indemnification in an amount of less than Five Thousand Dollars ($5,000) (other than a claim for only those Losses in excess arising from any breach or inaccuracy of any of the DeductibleFundamental Representations, fraud or intentional misrepresentation).
(b) Notwithstanding anything any other provisions of this Agreement to the contrary contained in this Agreementcontrary, except for (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any breaches of the representations and warranties contained in Section 3.5)Fundamental Representations, as applicable(ii) fraud, or (iii) intentional misrepresentation, the aggregate amount for which the Support Agreement Securityholders shall be liable to the Parent Indemnified Parties for all Losses for Warranty Breaches shall not exceed 20% twenty-five percent (25%) of the Aggregate Consideration and (ii) Net Closing Date Consideration; provided, that, the maximum aggregate liability amount for which the Support Agreement Securityholders shall be liable to the Parent Indemnified Parties for all Losses for breaches of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII Fundamental Representations shall not exceed one hundred percent (100%) of the Aggregate Net Closing Date Consideration.
(c) Payments by an Indemnifying Party pursuant Notwithstanding anything to Section 7.2 or Section 7.3 the contrary in respect of this Agreement, the Support Agreement Securityholders shall not have any Loss shall be reduced by the amount of liability to any amounts actually recovered by the Parent Indemnified Party under insurance policiesif any Tax attributes of the Company or any Subsidiary (including, indemnities but not limited to, net operating loss carryovers, capital loss carryovers, adjusted basis or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal credits) are not available to the aggregate amount Company, any Subsidiary, Parent, or any of the recovery shall be promptly made to the applicable Indemnifying Partytheir Affiliates for any taxable period.
(d) In no event shall any Indemnifying Party be responsible and liable to any Indemnified Party for any Losses or other amounts under this Agreement that are consequential, in the nature of lost profits, diminution in value, damage to reputation or the like, special or punitive or treble damages, other than indemnification for amounts paid or payable otherwise not actual Losses. Parent shall (and shall cause the Company and any Subsidiary to) use commercially reasonable efforts to third parties pursue all legal rights and remedies available in respect of any Third Party Claim order to minimize the Losses for which indemnification hereunder is otherwise requiredprovided to any Parent Indemnified Party. The amount of any Losses for which indemnification is provided under this Agreement shall be reduced by any related recoveries to which the Indemnified Party is entitled under insurance policies.
(e) Each Indemnified Party shall takeAny Support Agreement Securityholder that elected to receive Stock Consideration may, and cause its Affiliates in his sole discretion, satisfy all or a portion of his obligations under this Article X by delivering to takeParent a number of shares of Parent Common Stock with a value equal to the amount thereof. For this purpose, all commercially reasonable steps to mitigate any Loss upon becoming aware the “value” of any shares of Parent Common Stock delivered in satisfaction of an indemnity claim shall be the greater of (i) Two Dollars ($2.00) per share and (ii) the average of the last reported sales price per share (or in the absence of a last reported sales price, the average of the Closing Price) of Parent Common Stock over the ten (10) consecutive trading days ending two trading days before such shares are delivered to Parent as provided above (subject to equitable adjustment in the event of any stock split, stock dividend, reverse stock split or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs similar event affecting the Parent Common Stock since the beginning of such mitigation shall be Losses indemnified hereunder.
ten (f10) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received day period), multiplied by the Indemnified Party (the amount number of such proceeds determined net shares of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Parent Common Stock delivered to Parent to satisfy the indemnification claim.
Appears in 2 contracts
Samples: Support Agreement (National Patent Development Corp), Merger Agreement (National Patent Development Corp)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable required to the Purchaser Indemnified Parties make any indemnification payment pursuant to Section 10.02(a) or Section 10.02(b) for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than any inaccuracy in respect of a or breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained warranties, of Seller in Section 3.5this Agreement until such time as the total amount of all Damages (including the Damages arising from such inaccuracy or breach and all other Damages arising from any other inaccuracies in or breaches of any representations or warranties) unless and until that have been directly or indirectly suffered or incurred by the Purchaser, or to which the Purchaser Indemnified Parties or the Seller Indemnified Partieshas otherwise become subject, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration exceeds an amount equal to U.S. $100,000 (the “Deductible”) in the aggregateaggregate (it being understood that if the total amount of such Damages exceeds the Deductible, in which case then the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim be indemnified against and compensated and reimbursed only for only those Losses such Damages that are in excess of the Deductible).
(b) Notwithstanding anything Subject to the contrary contained in this AgreementSection 10.03(c), (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) 10 shall be equal to $3,750,000, except in the event of fraud or Section 7.3(a) (other than in respect of a breach of willful or inaccuracy in any Fundamental Representations intentional misrepresentation by Seller or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationits Representatives.
(c) Payments by an Indemnifying Party pursuant Absent fraud or willful or intentional misrepresentation, the indemnification provisions contained in this Article 10 are intended to provide the sole and exclusive remedy following the Closing as to all Damages the Purchaser may incur arising from or relating to this Agreement or the Transaction (it being understood that nothing in this Section 7.2 10.03(c) or Section 7.3 elsewhere in respect of any Loss this Agreement shall be reduced by affect the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements parties’ rights to specific performance with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase covenants referred to in premium this Agreement or other costs of insurance. In to be performed after the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyClosing).
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties Payments by Seller in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party Damages shall take, and cause its Affiliates be limited to take, all commercially reasonable steps to mitigate any Loss upon becoming aware the amount of any event or circumstance Damages that would be reasonably expected to, or does, give rise thereto, provided that remain after deducting therefrom any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage amounts actually received by the Indemnified Party Purchaser pursuant to the terms of the insurance policies (the amount of if any) covering such proceeds determined Damages (net of all deductibles, co-payments, retro-premium obligations and premium increases attributable thereto and all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereofcollection of any such insurance proceeds).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Esports Entertainment Group, Inc.), Stock Purchase Agreement (Esports Entertainment Group, Inc.)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, except in the case of actual and intentional fraud (as defined under Delaware common law), (i) the maximum aggregate liability amount of Seller or Purchaser under this Article VII for Losses indemnified Damages that may be recovered by an Indemnified Party under Section 7.2(a5.1(a) or Section 7.3(a5.2(a) shall not exceed $350,000 (provided that (A) such limitation shall not apply to the Specified Reps and the Fundamental Reps and (B) the amount of Damages that may be recovered by an Indemnified Party under Section 5.1(a) or Section 5.2(a) with respect to the Specified Reps shall not exceed $1,000,000), and (ii) an Indemnified Party shall not be permitted to recover any Damages under Section 5.1(a) or Section 5.2(a), as the case may be, until the aggregate amount of all such Damages exceed an amount equal to $100,000 (the “Deductible”) (other than in with respect to the Fundamental Reps) and then only to the extent of a breach of such excess. With respect to any Damages that may be recoverable by an Indemnified Party under Section 5.1(a) or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.55.2(a), as applicable, the Indemnifying Party shall not be liable for any individual or series of related Damages which do not exceed 20% $10,000 (which Damages shall not be counted toward the Deductible).
(b) The amount of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified Damages recoverable by an Indemnified Party under this Article VII (other than in V with respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by to an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss indemnity claim shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities payment or other reimbursement arrangements with respect to third-party recovery actually received by such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to such indemnity claim minus the amount of any Loss increase in insurance premiums and reasonable costs of collection directly attributable to such recovery (the “Recovery”). If an Indemnified Party receives any insurance payment or third-party payment in connection with any claim for Damages for which any such Person it has already been indemnified hereunderby the Indemnifying Party, then a refund it shall pay to the Indemnifying Party, within 30 calendar days of receiving such insurance payment, an amount equal to the aggregate amount of the recovery shall be promptly made Recovery (up to the applicable amount paid by the Indemnifying Party).
(dc) In no event shall any Indemnifying Party be responsible or liable to any Indemnified Party for any punitive Damages or treble other amounts under this Article V that are (i) consequential damages or Damages for lost profits or diminution in value, in each case except for those that are reasonably foreseeable and proximately caused by the asserted breach, or (ii) punitive, special, trebled or exemplary damages, in each case other than indemnification for any amounts paid or payable to an unaffiliated third parties in party with respect of any to Third Party Claim for which indemnification hereunder is otherwise requiredClaims based on a final judgment.
(ed) Each Except with respect to claims related to actual and intentional common law fraud or for specific performance as provided in Section 6.9, from and after the Closing the rights of the Indemnified Party Parties under this Article V shall take, be the sole and cause its Affiliates exclusive remedies of the Indemnified Parties with respect to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected toclaims under, or doesotherwise relating to the transactions that are the subject of, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net Agreement. Without limitation of the proceeds foregoing, in no event shall any party, its successors or permitted assigns be entitled to claim or seek rescission of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Contemplated Transactions.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Elevation Oncology, Inc.), Asset Purchase Agreement (Merrimack Pharmaceuticals Inc)
Limitations. Notwithstanding anything to the contrary set forth ----------- in this Agreement or otherwise, the Indemnifying Party's obligations to indemnify the Claimant pursuant to this Section 12 shall be subject to the ---------- following limitations:
(a) Subject No indemnification shall be required to be made by an Indemnifying Party until the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any amount of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Claimant's Losses in excess of 0.5% of the Aggregate Consideration exceeds Seven Hundred Fifty Thousand Dollars (the “Deductible”$750,000) in the aggregateaggregate (the "Deductible"), in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, and then indemnification shall be entitled required to bring a claim for only those Losses in excess be made to the extent of the Deductibleall such Losses.
(b) Notwithstanding anything No indemnification shall be required to be made by an Indemnifying Party for the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any amount of the representations and warranties contained Claimant's Losses that are in Section 3.5excess of Five Million Dollars ($5,000,000), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by The indemnification obligation of an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced so as to give effect to any (i) net reduction in federal, state, local or foreign income or franchise tax liability realized at any time by the Claimant in connection with the satisfaction by the Indemnifying Party of a Claim with respect to which indemnification is sought hereunder, (ii) available insurance proceeds and (iii) amount of any amounts actually the Claimant's Losses that are subsequently recovered by the Indemnified Party under insurance policies, indemnities Claimant pursuant to a settlement or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyotherwise.
(d) In no event shall the term "Losses" include any Indemnifying Party be liable consequential, incidental, indirect or any loss or damage to any Indemnified Party for any punitive Claimant, whether or treble damagesnot based upon events giving rise to indemnification hereunder, other than indemnification for amounts paid or payable to including claims brought by third parties in respect connection with any public offering or damages based on a multiple of any Third Party Claim for which indemnification hereunder is otherwise requiredearnings formula.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation Neither party hereto shall be entitled to recover Losses indemnified hereunder.with respect to any matter (including any breach of this Agreement by the other party) which was disclosed to such party in writing at or prior to the Closing Date and waived pursuant to Section 7.2 or Section 8.2 hereof, as applicable. --------------------------
(f) All From and after the Closing Date, the indemnification rights contained in this Section 12 shall constitute the sole and exclusive remedies of ---------- the parties hereunder and shall supersede and displace all other rights that either party may have under Law.
(g) Each of the Triton Entities and Purchaser hereby waives compliance by Purchaser and the Triton Entities with the bulk sales Law and any similar Laws in any applicable jurisdiction in respect of the transactions contemplated by this Agreement. The Triton Entities shall indemnify Purchaser from, and hold Purchaser harmless against, any Losses indemnified pursuant resulting from or arising out of (i) the parties' failure to comply with any such Laws in respect of the transactions contemplated by this Agreement shall be net of the proceeds of and (ii) any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles action brought or retentions thereunder and increases in premiums levy made as a result thereof).thereof without regard to the provisions of Section 12.5. ------------
Appears in 2 contracts
Samples: Asset Purchase Agreement (Triton Management Co Inc), Asset Purchase Agreement (Triton Management Co Inc)
Limitations. (a) Subject In no event shall the Purchasers' liability under this letter agreement exceed an amount equal to the additional limitations set forth below Reverse Termination Fee (described in Section 8.3(b) of the Merger Agreement); provided, that, such Reverse Termination Fee may be paid and satisfied in full by the Purchasers delivering to Parent or APN Holdco a principal amount of Parent's 12 1/4% Senior Subordinated Notes due 2008 and/or Second Lien Notes in the aggregate equal to the Reverse Termination Fee (plus any accrued and unpaid interest thereon through the date of delivery). Notwithstanding anything to the contrary contained herein, the payment of the Reverse Termination Fee in accordance with this Section 7.55(a) shall constitute liquidated damages and in no event shall the Purchasers have any additional liability under this letter agreement beyond their obligation to pay the Reverse Termination Fee, Seller except that nothing herein shall not be liable to limit the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any liability of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties Purchasers for any act of fraud or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductiblebad faith.
(b) Notwithstanding anything to the contrary contained that may be expressed or implied in this Agreementletter agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (it is expressly agreed and acknowledged that, no Person other than the Purchasers shall have any obligation hereunder and that, notwithstanding that the Master Fund is a company organized under the laws of the Cayman Islands and the Special Fund is a Delaware limited partnership, no recourse hereunder or under any documents or instruments delivered in respect connection herewith shall be had against any former, current or future director, officer, agent, employee, general or limited partner, manager, member, advisor, stockholder, affiliate or assignee of a breach either Purchaser or any former, current or future director, officer, agent, employee, general or limited partner, manager, member, advisor, stockholder, affiliate or assignee of or inaccuracy in any Fundamental Representations or any of the representations foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law; it being expressly agreed and warranties contained in Section 3.5)acknowledged that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any former, current or future director, officer, agent, employee, general or limited partner, manager, member, advisor, stockholder, affiliate or assignee of either Purchaser or any former, current or future director, officer, agent, employee, general or limited partner, manager, member, advisor, stockholder, affiliate or assignee of any of the foregoing, as applicablesuch, shall not exceed 20% for any obligations of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified Purchasers under this Article VII (other than letter agreement or any documents or instruments delivered in connection herewith or for any claim based on, in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected toof, or doesby reason of, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderobligations or their creation.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Merger Agreement (Harbinger Capital Partners Master Fund I, Ltd.), Merger Agreement (Salton Inc)
Limitations. 7.4.1 Owner’s total liability to Contractor under this Article 7 shall not exceed the Schedule Bonus Cap.
7.4.2 Notwithstanding anything contained herein to the contrary, if at any time Contractor’s Margin is reduced pursuant to Section 8.2 to:
(a) Subject to [***], then the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than aggregate amount of all Schedule Bonuses in respect of a breach of which Contractor has been paid or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, is entitled to be paid shall be entitled reduced by an amount equal to bring a claim for only those Losses in excess [***] of the Deductible.such aggregate amount;
(b) Notwithstanding anything to [***], then the contrary contained in this Agreement, (i) the maximum aggregate liability amount of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than all Schedule Bonuses in respect of a breach which Contractor has been paid or is entitled to be paid shall be reduced by an amount equal to [***] of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum such aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.amount;
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 [***], then the aggregate amount of all Schedule Bonuses in respect of any Loss which Contractor has been paid or is entitled to be paid shall be reduced by an amount equal to [***] of such aggregate amount;
(d) [***], then the aggregate amount of all Schedule Bonuses in respect of which Contractor has been paid or is entitled to be paid shall be reduced by an amount equal to [***] of such aggregate amount; provided that, for the avoidance of doubt, the reductions described in this Section 7.4.2 shall not be cumulative. If Owner has paid any Schedule Bonus(es) to Contractor prior to such reduction, then Owner may, without prejudice to Section 41.7, deduct from any amounts owed to Contractor hereunder an amount equal to the amount of such reduction.
7.4.3 Notwithstanding anything contained herein to the contrary, if Owner determines that Contractor has not or will not be entitled to payment for any Primary Milestone or Super Primary Milestone pursuant to and in accordance with Section 7.2 and Section 7.3, respectively, Owner shall have no obligation to pay to Contractor any Schedule Bonuses pursuant to this Agreement. If Owner has paid any Schedule Bonus(es) to Contractor prior to such determination, then Owner may, without prejudice to Section 41.7, deduct from any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect owed to such Losses less the Contractor hereunder an amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyall such Schedule Bonuses previously paid.
(d) In no event 7.4.4 For the avoidance of doubt, Contractor shall any Indemnifying Party not be liable entitled to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties payment in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, Schedule Bonus unless and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net until the achievement of the proceeds relevant Schedule Milestone is confirmed by a Certificate of any third-party insurance coverage actually received Schedule Milestone Achievement to be provided by Contractor together with the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)relevant Request for Payment.
Appears in 2 contracts
Samples: Engineering, Procurement and Construction Agreement (Venture Global, Inc.), Engineering, Procurement and Construction Agreement (Venture Global, Inc.)
Limitations. (a) Subject In no event shall the Elan Companies or the Acquiror Parent or the Acquirors be liable for any Damages pursuant to a claim based upon a representation or warranty or, if the Closing occurs, a covenant or agreement to be performed at or prior to the additional limitations set forth below in this Closing and pursuant to Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a11.02(a)(i) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties11.02(b)(i), as applicable, have incurred Losses in excess of 0.5% of unless and until (i) the Aggregate Consideration (the “Deductible”) in the aggregateindividual claim giving rise to any Damages exceeds $100,000, in which case the Purchaser Indemnified Parties Elan Companies or the Seller Indemnified PartiesAcquiror Parent and the Acquirors, as applicable, shall be entitled to bring a claim liable for all Damages arising from such claim, (ii) the aggregate amount of all such Damages exceeds $5,000,000, in which case the Elan Companies or the Acquiror Parent and the Acquirors, as applicable, shall be liable for all such Damages only those Losses in excess of such amount, and then (iii) not for any amount in excess of $50,000,000 for all claims made under such Section 11.02(a)(i) or 11.02(b)(i), as applicable, in the Deductibleaggregate. Notwithstanding the foregoing, the provisions of this Section 11.03(a) shall not be applicable to any breach of any representation or warranty by any party attributable to such party's fraud or willful misrepresentation contained therein.
(b) Notwithstanding anything to the contrary contained in this Agreement, The amount of any Damages recoverable by a party under Section 11.02 shall be (i) reduced by (x) the maximum aggregate liability amount of Seller or Purchaser under this Article VII for Losses any actual Tax Benefits realized by the Indemnified Party that result from the Liability that gave rise to such indemnity and (y) the amount of any insurance proceeds paid to the indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration party relating to such claim and (ii) if the maximum aggregate liability Tax Benefits are less than zero, increased by the amount of Seller or Purchaser any actual net Tax cost (i.e., the excess of the Tax increases over the Tax savings actually realized by the Indemnified Party) incurred by the Indemnified Party that results from the receipt of indemnity payments hereunder (grossed up for Losses indemnified under this Article VII (other than in respect income Taxes on the amount of Losses indemnified under Section 7.2(cthe net Tax cost)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect For purposes of any Loss right to indemnification hereunder, the representations and warranties of the Elan Companies, the King Companies and their respective Subsidiaries shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made deemed not qualified by any Indemnified Party with respect references therein to materiality generally or to whether or not any Loss for which any such Person has been indemnified hereunder, then breach would result in a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyMaterial Adverse Effect or an Acquiror Material Adverse Effect.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damagesTHE INDEMNIFICATION OBLIGATIONS OF THE PARTIES HERETO SHALL NOT EXTEND TO SPECIAL, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredEXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUSINESS INTERRUPTION OR LOST PROFITS, OR PUNITIVE DAMAGES.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Asset Purchase Agreement (King Pharmaceuticals Inc), Asset Purchase Agreement (Elan Corp PLC)
Limitations. (a) Subject In no event shall the Seller have liability under Section 8.2(a)(i) to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of extent a breach of a representation or inaccuracy in any Fundamental Representations warranty results from, relates to or any arises out of the representations and warranties contained in Section 3.5) unless and until T-Mobile Parties’ breach of the Purchaser Indemnified Existing Lease or the use or operation of the Seller Licenses by the T-Mobile Parties or their Affiliates thereunder. In no event shall the Seller’s aggregate liability under this Article 8 or otherwise pursuant to this Agreement exceed the Purchase Price (or portion thereof) actually received by the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled pursuant to bring a claim for only those Losses in excess of the Deductiblethis Agreement.
(b) Notwithstanding anything to In no event shall the contrary contained in this Agreement, (i) the maximum T-Mobile Parties’ aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) 8 exceed the Purchase Price; provided that in no event shall the foregoing limitation of liability apply to or Section 7.3(a) (other than in limit T-Mobile Parties’ liability, or the Seller’s remedies, with respect of a breach of or inaccuracy in any Fundamental Representations or any to the payment of the representations and warranties contained Purchase Price, including the remedies of the Seller set forth in Section 3.52.1(b), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Notwithstanding any other provisions of this Agreement, in no event shall any Party be liable for any Losses that are lost profits, consequential, exemplary, special, incidental or punitive damages, or otherwise not constituting actual direct Losses, regardless of the theory of recovery, provided that this Section 8.3(c) shall not apply to any damages awarded to a third party pursuant to a final, non-appealable order; provided that, for the avoidance of doubt, this Section 8.3(c) shall not limit the T-Mobile Parties’ obligations to pay any interest, fees, costs or expenses that may become payable to the Seller pursuant to Section 7.2 or Section 7.3 2.1(b)(iii), including in respect connection the failure to pay the Purchase Price when due hereunder.
(d) The amount of any Loss Losses for which an Indemnified Party claims indemnification under this Agreement shall be reduced by the amount of by: (i) any amounts insurance proceeds actually recovered received by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less (net of any increases in premiums or other costs attributable thereto); and (ii) any indemnification or reimbursement payments actually received by the amount Indemnified Party from third parties (other than insurers) with respect to such Losses (net of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredattributable thereto).
(e) Each Indemnified of the Parties acknowledges and agrees that the Seller Licenses and the transactions contemplated by this Agreement are unique and each of the Seller and the T-Mobile Parties would not have an adequate remedy at law for money damages in the event that this Agreement has not been performed in accordance with its terms, and therefore agrees that, in addition to all other remedies available at law or in equity, the other Party shall takebe entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement by the other (as applicable), and cause its Affiliates to take, all commercially reasonable steps specifically enforce the terms and provisions of this Agreement to mitigate any Loss upon becoming aware of any event prevent breaches or circumstance that would be reasonably expected tothreatened breaches of, or doesto enforce compliance with, give rise theretothe covenants and obligations of the other (as applicable). Each Party agrees that it will not oppose the granting of an injunction, provided specific performance and other equitable relief on the basis that any costs other Party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity (subject to such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant Party’s rights to defend such matter on its merits). Any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be net required to provide any bond or other security in connection with any such order or injunction. The foregoing shall not be deemed to be or construed as a waiver or election of remedies by any of the proceeds Parties, and each of the Parties expressly reserve any and all rights and remedies available to them at law or in equity in the event of any third-party insurance coverage actually received breach or default by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)other Parties under this Agreement.
Appears in 2 contracts
Samples: License Purchase Agreement (T-Mobile US, Inc.), License Purchase Agreement (T-Mobile US, Inc.)
Limitations. (a) Subject Except for injunctive relief and similar equitable remedies and except for Damages relating to the additional limitations set forth below in this Section 7.5or arising out of (A) fraud, willful misrepresentation, willful breach or willful misconduct by Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5Shareholders, (B) unless and until the Purchaser Indemnified Parties or any alleged breach of (i) the Seller Indemnified PartiesNon-competition Agreement, as applicable(ii) the Shareholder Non-competition Agreement, have incurred Losses in excess of 0.5% (iii) the Surviving Representations or (iv) Seller’s or any of the Aggregate Consideration Shareholders’ obligations in respect of any Employee Non-competition Agreement, and for certainty excluding any alleged breach by any employee of its obligations thereunder, or (C) the Retained Liabilities (collectively the “DeductibleExcluded Damages”) ), recourse to the Escrow Fund in accordance with the aggregate, in which case provisions hereof and the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, Escrow Agreement shall be entitled to bring a claim Buyer’s sole and exclusive remedy available only for only those Losses in excess of the DeductibleDamages under Section 9.2 above.
(b) Notwithstanding anything to Other than the contrary contained Excluded Damages and any alleged breach of the representation and warranty set forth in the last sentence of Section 4.5 of this Agreement, (i) no indemnification from the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified Escrow Fund with respect to any Damages otherwise payable under Section 7.2(a) or Section 7.3(a) 9.2 above shall be payable until such time as all such indemnifiable Damages shall aggregate to more than C$50,000, after which time the Escrow Fund shall be drawn upon for all indemnifiable Damages (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of including the representations and warranties contained in Section 3.5first C$50,000), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments Any claims by an Buyer against the Indemnifying Party pursuant Parties for any Damages other than Damages relating to Section 7.2 or Section 7.3 arising out of (A) fraud, willful misrepresentation, willful breach or willful misconduct by Seller or any of the Shareholders, or (B) any alleged breach of Seller’s or any of the Shareholders’ obligations in respect of any Loss shall be reduced by the amount of Employee Non-competition Agreement, and for certainty excluding any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made alleged breach by any Indemnified Party with respect to any Loss for which any such Person has been indemnified employee of its obligations thereunder, shall not exceed, in the aggregate, the Purchase Price payable hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any The amount of Damages for which an Indemnified Party for any punitive or treble damages, other than is entitled to indemnification for amounts paid or payable shall be reduced to third parties in respect the extent that the full amount of any Third Party Claim for which indemnification hereunder is otherwise requiredsuch Damages have been reduced from the Closing Consideration as a result of a Working Capital Shortfall due to such Damages.
(e) Each Indemnified Party Except for Damages resulting from fraud, willful misrepresentation, willful breach or willful misconduct by Seller or any of the Shareholders or from any breach of Section 4.11 hereof, Damages shall takenot include any incidental, and cause its Affiliates punitive, special, consequential or indirect Damages of the Buyer including, without limitation, loss of profits or failure to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably realize expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereundersavings.
(f) All Losses indemnified pursuant The Indemnifying Parties shall not be liable for any Damages to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received extent that such Damages have been otherwise recovered by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereofBuyer or satisfied by any other Person including, deductibles or retentions thereunder and increases in premiums without limitation, as a result thereof)of the Buyer receiving or being reasonably able to receive compensation for such Damages pursuant to any policy of insurance maintained by the Buyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (SolarWinds, Inc.)
Limitations. (a) Subject No amounts of indemnity shall be payable by SLG, SLGOP and Manager Corp as a result of any claim arising under clause (a) of Section 7.2 relating to a breach or alleged breach of a representation or warranty (i) unless the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than Losses in respect of such claim or series of related claims exceeds $20,000 (any such Losses being “Qualifying Losses”) and (ii) unless and until Parent Indemnified Parties have paid, suffered, incurred, sustained or become subject to Qualifying Losses referred to in that clause in excess of $500,000 in the aggregate (the “SLGOP Deductible”), in which case Parent Indemnified Parties may bring a claim for such Losses to the extent the aggregate amount of such Losses exceeds the SLGOP Deductible; provided, that such limitation shall not apply to any claim for Losses based upon a breach of or inaccuracy in any Fundamental Representations Representation. The maximum aggregate Liability of SLG, SLGOP and Manager Corp under clause (a) of Section 7.2 shall not exceed $10,000,000 (the “Indemnity Amount”); provided, that such limitation shall not apply to any claim for Losses based upon a breach of any Fundamental Representation or to any claim for Losses pursuant to Section 7.2(b), Section 7.2(c) or Section 7.2(d).
(b) No amounts of indemnity shall be payable as a result of any claim arising under clause (a) of Section 7.3 relating to a breach or alleged breach of a representation or warranty (i) unless the representations Losses in respect of such claim or series of related claims are Qualifying Losses and warranties contained in Section 3.5(ii) unless and until the Purchaser Manager Indemnified Parties have paid, suffered, incurred, sustained or the Seller Indemnified Parties, as applicable, have incurred become subject to Qualifying Losses referred to in that clause in excess of 0.5% of $500,000 in the Aggregate Consideration aggregate (the “Parent Deductible”) in the aggregate, in which case the Purchaser Manager Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to may bring a claim for only those such Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreementextent the aggregate amount of such Losses exceeds the Parent Deductible; provided, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in that no such limitation exists with respect of to a claim based on a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the Parent’s Fundamental Representations. The maximum aggregate liability Liability of Seller or Purchaser for Losses indemnified Parent under this Article VII clause (other than in respect a) of Losses indemnified under Section 7.2(c)) or Article VIII 7.3 shall not exceed the Aggregate ConsiderationIndemnity Amount; provided, that no such limitation exists with respect to a claim based on a breach of any of Parent’s Fundamental Representations.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 Notwithstanding anything contained in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal this Agreement to the aggregate amount contrary, Parent acknowledges and agrees that the breach by SLGOP of the recovery representation and warranty contained in Section 3.6 shall be promptly made to not in and of itself result in a Loss; provided, that the applicable Indemnifying Partyforegoing shall not prevent or otherwise affect a determination that the underlying cause of such breach shall have resulted in a Loss.
(d) In no event Nothing in this Section 7.4 shall apply to, or in any way limit the obligations of, an Indemnifying Party be liable under Section 7.5 to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties pay all defense costs in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredthird-party claims.
(e) Each Indemnified Party Nothing in this Section 7.4 shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected apply to, or does, give rise thereto, provided that in any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net way limit the obligations of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)parties under Article VI.
Appears in 2 contracts
Samples: Securities Transfer Agreement (Sl Green Realty Corp), Securities Transfer Agreement (Gramercy Capital Corp)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties No Buyer Indemnitee will assert any claim (each an “Indemnity Claim”) for indemnification under pursuant to Section 7.2(a8.2(a)(i) and Purchaser shall not be liable to until such time that the Seller Indemnified Parties for indemnification under Section 7.3(aaggregate amount of Losses exceeds $1,500,000 (the “Deductible”) (other than except (i) in the case of actual fraud or (ii) with respect to any Fundamental Representation, with respect to which the Deductible shall be deemed to be zero), in which case such Buyer Indemnitee will be entitled to recover all Losses in excess of the applicable Deductible. CCOC’s aggregate liability in respect of any indemnification obligation for Losses under Section 8.2(a)(i) shall not exceed an amount equal to $1,901,812.50 less the Deductible (the “CCOC Retention”) (except (x) no limit shall apply in the case of actual fraud, (y) in respect of any Indemnity Claim pursuant to Section 8.2(a)(i) for which coverage is not obtained under the Buyer Insurance Policy as a result of (I) in the case of a breach of or inaccuracy of any Compliance with Law Representation or Fundamental Representation, such claim having been rejected due to the fact that the policy limit under the Buyer Insurance Policy has been reached, (II) in the case of a breach or inaccuracy of any Fundamental Representations Representation, the Buyer Insurance Policy having expired or (III) in case of any representation set forth in Article IV or Article V, coverage being denied under the Buyer Insurance Policy as a result of a Specified Exclusion, in each case, CCOC shall provide indemnification in respect of such Indemnity Claim up to the representations Supplemental Indemnification Hurdle and warranties contained (z) CCOC shall provide the applicable CCOC Supplemental Indemnification in Section 3.5respect of breaches of any Fundamental Representation (with respect to which the Deductible shall be deemed to be zero) unless and until the Purchaser Indemnified Parties or the Seller Indemnified PartiesCompliance with Law Representation, as applicable, described below). To the extent the Buyer Indemnitees have incurred Losses in excess of 0.5the sum of the applicable Deductible, the CCOC Retention and twenty percent (20%) of the Total Cap (such sum being referred to as the “Supplemental Indemnification Hurdle”) (A) with respect to breaches or inaccuracies of the Compliance with Law Representation, CCOC shall provide indemnification for Losses that are in excess of the Supplemental Indemnification Hurdle and that are less than or equal to the difference between (1) 50% of the Aggregate Consideration Total Cap minus (2) any indemnification previously provided by CCOC to the Buyer Indemnitees pursuant to clause (B) of this sentence minus (3) the Contingent Indemnification Amount, if any minus (4) any indemnification previously provided by CCOC pursuant to Section 6.2(a)(i) of the Carry Investment Agreement (the “DeductibleCompliance with Law Cap”) and (B) with respect to breaches or inaccuracies of any Fundamental Representation, CCOC shall provide indemnification for Losses that are in excess of the Supplemental Indemnification Hurdle and that are less than or equal to the difference between (1) the Total Cap minus (2) any indemnification previously provided by CCOC to the Buyer Indemnitees pursuant to clause (A) of this sentence minus (3) the Contingent Indemnification Amount, if any minus (4) any indemnification previously provided by CCOC pursuant to Section 6.2(a)(i) of the Carry Investment Agreement (the indemnification obligations described in clauses (A) and (B), each a “CCOC Supplemental Indemnification”). Notwithstanding anything contained herein to the contrary, CCOC’s aggregate liability in respect of any obligation for Losses under Section 8.2(a) (except in the aggregatecase of actual fraud, or Section 8.2(a)(iii), (iv) or (v)), shall not exceed an amount equal to the Wafra Investment Amount (without taking into account any reduction pursuant to Section 8.3(f)) (the “Total Cap”) minus any indemnification previously provided by CCOC pursuant to Section 6.2(a) of the Carry Investment Agreement. For purposes of calculating the Supplemental LA_LAN01:362972.20 Indemnification Hurdle, indemnification previously provided by CCOC pursuant to Section 6.2(a)(i) of the Carry Investment Agreement shall be deemed Losses.
(b) No Digital Colony Indemnitee will assert any claim for indemnification pursuant to Section 8.2(b)(i) until such time that the aggregate amount of (i) Losses and (ii) indemnification previously provided by W-Catalina (C) LLC pursuant to Section 6.2(b) of the Carry Investment Agreement for breach or inaccuracy of the W-Catalina (C) Non-Fundamental Representations exceeds the Deductible (except in the case of actual fraud or in respect of breaches of any Buyer Fundamental Representation, with respect to which the Deductible shall not apply), in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall such Digital Colony Indemnitee will be entitled to bring a claim for only those recover all Losses in excess of the Deductible.
(b) . Notwithstanding anything contained herein to the contrary contained in this Agreementcontrary, (i) the maximum Buyer’s aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a(A) or Section 7.3(a) (other than in respect of a any obligation for Losses under Section 8.2(b)(i) and indemnification previously provided by W-Catalina (C) LLC pursuant to Section 6.2(b)(i) of the Carry Investment Agreement for breach of or inaccuracy in any of the W-Catalina (C) Non-Fundamental Representations or any shall not exceed an amount equal to 20% of the representations Total Cap (except in the case of actual fraud or in respect of breaches of any Buyer Fundamental Representation) and warranties contained (B) in respect of any obligation for Losses under Section 3.58.2(b) and any indemnification previously provided by W-Catalina (C) LLC pursuant to Section 6.2(b) of the Carry Investment Agreement (except in the case of actual fraud), as applicable, shall not exceed 20% of an amount equal to the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationTotal Cap.
(c) Payments by an Indemnifying Party The amount of any indemnification payable under this Article VIII in respect of a claim for indemnification pursuant to Section 7.2 or Section 7.3 in respect of any Loss 8.2 shall be reduced by an amount equal to the amount proceeds actually received by a Buyer Indemnitee or Digital Colony Indemnitee, as applicable, under any insurance policy (other than the Buyer Insurance Policy which is addressed in Section 8.3(d)) or from any third party in respect of such claim less all actual and reasonable out-of-pocket costs and expenses incurred by such Buyer Indemnitee or Digital Colony Indemnitee in connection with obtaining such insurance proceeds or third-party recovery (including reasonable and documented out-of-pocket attorneys’ fees, any deductible, any retention, any retroactive premium adjustment on the account of, or arising from, such claim or Losses, and the present value of any amounts actually recovered by increases in insurance premiums on the Indemnified Party account of or arising from such claim or Losses, or the cost of cancellation of such insurance policy and any increased costs for any replacement policy). Each Buyer Indemnitee and Digital Colony Indemnitee shall use its, his or her commercially reasonable efforts to pursue any insurance recovery (other than under insurance policies, indemnities the Buyer Insurance Policy which is addressed in Section 8.3(d)) or other reimbursement arrangements with respect third-party recovery available to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party it with respect to any Loss for which such Buyer Indemnitee or Digital Colony Indemnitee seeks indemnification pursuant to this Article VIII (including during the period following any payment to such Buyer Indemnitee in respect of such indemnification); provided, that the possibility that insurance proceeds may be realized by such Buyer Indemnitee or Digital Colony Indemnitee shall not delay payment or indemnification of such Losses by the Party against whom indemnification is sought pursuant to this Article VIII. If any Person has paid an amount in discharge of any Indemnity Claim and the indemnified Person recovers from an insurance policy (other than the Buyer Insurance Policy which is addressed in Section 8.3(d)) or from a third party a sum which indemnifies or compensates such Person has been indemnified hereunderin respect of the Losses which are the subject matter of such claim, then a refund such Person shall pay to the Indemnifying Party as soon as practicable after receipt thereof an amount equal to the aggregate lower of (i) the amount actually received by such Person from the Indemnifying Party in respect of such claim and (ii) any sum recovered from the third party, in each case, less all reasonable out-of-pocket LA_LAN01:362972.20 costs and expenses incurred by such Buyer Indemnitee or Digital Colony Indemnitee in connection with obtaining such insurance proceeds or third-party recovery shall be promptly made to the applicable Indemnifying Partyand any Tax suffered thereon.
(d) In no event Except in the case of actual fraud, the CCOC Retention, the CCOC Supplemental Indemnification or the obligation to indemnify the Buyer Indemnitees as described in Section 8.3(a)(y), the Buyer Indemnitees’ sole source of recovery for any Indemnity Claim pursuant to Section 8.2(a)(i) shall be the Buyer Insurance Policy and not direct payment by any Indemnifying other Party to this Agreement. Buyer shall, and shall cause each other Buyer Indemnitee to use its, his or her commercially reasonable best efforts to, pursue any insurance recovery under the Buyer Insurance Policy with respect to any Loss for which such Buyer Indemnitee seeks indemnification pursuant to this Article VIII and Buyer shall and shall cause each such Buyer Indemnitee to take such action as may be reasonably requested by CCOC to pursue recovery under the Buyer Insurance Policy with respect to such Loss. Buyer shall submit any bona fide claims pursuant to Section 8.2(a)(i) to the insurer under the Buyer Insurance Policy so as to cause the retention to be satisfied, notwithstanding that such claim may not be in excess of the Deductible. Buyer shall provide any correspondence with the insurer under the Buyer Insurance Policy to CCOC concurrently if made by Buyer and promptly if received by Buyer; provided, that Buyer’s failure to provide copies of any such correspondence shall not affect the indemnification obligations of CCOC unless CCOC is actually materially prejudiced by failure to give such notice. CCOC will only be liable for the CCOC Supplemental Indemnification if such claim has first been submitted to any Indemnified Party for any punitive the insurer under the Buyer Insurance Policy and (i) such claim has been rejected due to the fact that the policy limit under the Buyer Insurance Policy has been reached, (ii) the Buyer Insurance Policy has expired or treble damages(iii) coverage is denied under the Buyer Insurance Policy as a result of a Specified Exclusion. For the avoidance of doubt, other than indemnification for amounts paid or payable claims need not be submitted to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredthe insurer under the Buyer Insurance Policy if the applicable coverage period under the Buyer Insurance Policy has expired.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation No Person shall be Losses indemnified hereunderentitled to recover from an Indemnifying Party or any Affiliate thereof more than once with respect to the same Loss (i.e. no double-counting). For the avoidance of doubt, claims for indemnification pursuant to Section 8.2 or Section 8.3 may be made based upon a liability which is contingent at the time such claim is made; provided, however, that no Person shall be entitled to recover with respect to any such claim unless and until such liability becomes an actual liability.
(f) All Losses indemnified pursuant If any CCOC Supplemental Indemnification is paid prior to this Agreement shall be net the date that the Contingent Consideration Amount is payable, the Contingent Consideration Amount is subsequently payable, and the amount of the proceeds applicable CCOC Supplemental Indemnification that would have been paid would have increased if the payment of any third-party insurance coverage actually received by the Indemnified Party Contingent Consideration Amount had previously occurred (the amount of any such proceeds determined net of all costs of recovery thereofincrease being the “Contingent Indemnification Amount”), deductibles or retentions thereunder and increases in premiums as a result thereof)then the Contingent Consideration Amount payable shall be reduced by the Contingent Indemnification Amount, which shall fully satisfy CCOC’s obligations with respect to the Contingent Consideration Amount.
Appears in 2 contracts
Samples: Investment Agreement (Colony Capital, Inc.), Investment Agreement (Colony Capital, Inc.)
Limitations. (a) Subject In no event shall the Seller have liability under Section 8.2(a)(i) to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of extent a breach of a representation or inaccuracy in any Fundamental Representations warranty results from, relates to or any arises out of the representations and warranties contained in Section 3.5) unless and until T-Mobile Parties’ breach of the Purchaser Indemnified Existing Lease or the use or operation of the Seller Licenses by the T-Mobile Parties or their Affiliates thereunder. In no event shall the Seller’s aggregate liability under this Article 8 or otherwise pursuant to this Agreement exceed the Purchase Price (or portion thereof) actually received by the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled pursuant to bring a claim for only those Losses in excess of the Deductiblethis Agreement.
(b) Notwithstanding anything to In no event shall the contrary contained in this Agreement, (i) the maximum T-Mobile Parties’ aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) 8 exceed the Purchase Price; provided that in no event shall the foregoing limitation of liability apply to or Section 7.3(a) (other than in limit T-Mobile Parties’ liability, or the Seller’s remedies, with respect of a breach of or inaccuracy in any Fundamental Representations or any to the payment of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationPurchase Price.
(c) Payments by an Indemnifying Notwithstanding any other provisions of this Agreement, in no event shall any Party be liable for any Losses that are lost profits, consequential, exemplary, special, incidental or punitive damages, or otherwise not constituting actual direct Losses, regardless of the theory of recovery, provided that this Section 8.3(c) shall not apply to any damages awarded to a third party pursuant to Section 7.2 or Section 7.3 in respect a final, non-appealable order.
(d) The amount of any Loss Losses for which an Indemnified Party claims indemnification under this Agreement shall be reduced by the amount of by: (i) any amounts insurance proceeds actually recovered received by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less (net of any increases in premiums or other costs attributable thereto); and (ii) any indemnification or reimbursement payments actually received by the amount Indemnified Party from third parties (other than insurers) with respect to such Losses (net of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredattributable thereto).
(e) Each Indemnified of the Parties acknowledges and agrees that the Seller Licenses and the transactions contemplated by this Agreement are unique and each of the Seller and the T-Mobile Parties would not have an adequate remedy at law for money damages in the event that this Agreement has not been performed in accordance with its terms, and therefore agrees that, in addition to all other remedies available at law or in equity, the other Party shall takebe entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement by the other (as applicable), and cause its Affiliates to take, all commercially reasonable steps specifically enforce the terms and provisions of this Agreement to mitigate any Loss upon becoming aware of any event prevent breaches or circumstance that would be reasonably expected tothreatened breaches of, or doesto enforce compliance with, give rise theretothe covenants and obligations of the other (as applicable). Each Party agrees that it will not oppose the granting of an injunction, provided specific performance and other equitable relief on the basis that any costs other Party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity (subject to such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant Party’s rights to defend such matter on its merits). Any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be net required to provide any bond or other security in connection with any such order or injunction. The foregoing shall not be deemed to be or construed as a waiver or election of remedies by any of the proceeds Parties, and each of the Parties expressly reserve any and all rights and remedies available to them at law or in equity in the event of any third-party insurance coverage actually received breach or default by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)other Parties under this Agreement.
Appears in 2 contracts
Samples: License Purchase Agreement (T-Mobile US, Inc.), License Purchase Agreement (T-Mobile US, Inc.)
Limitations. (a) Subject Except with respect to (i) Taxes or (ii) any Loss arising out of any breach of (A) any representation or warranty in Section 4.15 or (B) any of the additional limitations set forth below in this Section 7.5Fundamental Representations, Seller SE Corp shall not be liable to the Purchaser SEP Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable any Losses with respect to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties matters contained in Section 3.59.2(a)(i) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred aggregate of all Losses in excess of 0.5% of the Aggregate Consideration therefrom for which SE Corp would otherwise be liable exceeds an amount equal to $106,000,000 (the “Deductible”) in the aggregate), in after which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, SE Corp shall only be entitled to bring a claim liable for only those Losses in excess of the Deductible.
(b) Notwithstanding anything Except with respect to the contrary contained in this Agreement, (i) the maximum aggregate liability Taxes or (ii) any Loss arising out of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a any breach of (A) any representation or inaccuracy warranty in any Fundamental Representations Section 4.15 or (B) any of the representations and warranties Fundamental Representations, SE Corp shall not be liable to the SEP Indemnified Parties with respect to the matters contained in Section 3.59.2(a)(i) for any individual Loss (or series of related Losses arising from a common set of facts), as applicableexcept to the extent such individual Loss (or series of related Losses arising from a common set of facts) exceeds $2,000,000 (the “Mini-Basket”), shall and any such individual Losses (or series of related Losses arising from a common set of facts) not exceed 20% in excess of the Aggregate Consideration and (ii) Mini-Basket will not be aggregated for purposes of calculating the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than Deductible in respect of Losses indemnified under Section 7.2(c9.4(a)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party In no event shall SE Corp’s aggregate liability to the SEP Indemnified Parties for Losses with respect to the matters contained in Section 9.2(a)(i) exceed $1,060,000,000 (the “Cap”), except with respect to (i) Taxes or (ii) any Loss arising out of any breach of (A) any representation or warranty in Section 4.15 or (B) any of the Fundamental Representations, in which case SE Corp’s aggregate liability to SEP Indemnified Parties pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to 9.2(a)(i) for such Losses less the shall not exceed an amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyCash Distribution.
(d) In no event shall any Indemnifying Party be liable SEP’s aggregate liability to any the Contributor Indemnified Party Parties for any punitive or treble damages, other than indemnification for amounts paid or payable Losses with respect to third parties matters contained in Section 9.3(a)(i) exceed $1,060,000,000. In no event shall SEP’s aggregate liability to the Contributor Indemnified Parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredthe SE US Liabilities pursuant to Section 9.3(a)(iv) exceed $50,000,000.
(e) As to any Losses claimed by an SEP Indemnified Party and suffered by a Company, 100% of such Losses (and not just the percentage thereof that represents SEP’s interest in such Company) shall be counted towards the Deductible and the Cap hereunder. To the extent any SEP Indemnified Party other than a Company has a claim under Section 9.2(a)(i) or under Section 6.8(a) for Losses suffered by any of the Companies, such SEP Indemnified Party shall only be entitled to recover the percentage of such Losses that represents SEP’s interest in the relevant Company.
(f) Notwithstanding anything herein to the contrary, no Indemnified Party shall be entitled to indemnification or reimbursement under any provision of this Agreement for any amount to the extent such Person or its Affiliate has been indemnified or reimbursed for such amount under any other provision of this Agreement.
(g) Notwithstanding anything to the contrary in this Agreement, in no event shall an Indemnifying Party be liable under this Article IX for any exemplary, punitive, special, consequential, incidental or indirect damages, including lost profits or diminution of value or any loss of goodwill or possible business after any Closing, whether actual or prospective, except to the extent any such damages are included in any Third-Party Claim against a SEP Indemnified Party for which such SEP Indemnified Party is entitled to indemnification under this Agreement.
(h) Each Indemnified Party shall take, and cause its Affiliates to take, all use commercially reasonable steps efforts to mitigate any Loss their respective Losses upon and after becoming aware of any event or circumstance condition that would reasonably be reasonably expected to, or does, to give rise theretoto any Losses that are indemnifiable hereunder. In the event an Indemnified Party fails to so mitigate an indemnifiable Loss, provided that the Indemnifying Party shall have no liability for any costs portion of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by Loss that reasonably could have been avoided had the Indemnified Party (made such efforts. Without limiting the amount generality of the foregoing, after an Indemnified Party acquires knowledge of any fact or circumstance that results in or reasonably would be expected to result in an indemnified Loss or a Third-Party Claim for which the Indemnifying Party may have Liability to such proceeds determined net Indemnified Party, such Indemnified Party shall notify the Indemnifying Party promptly and implement such reasonable actions as the Indemnifying Party shall request in writing for the purposes of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)mitigating the possible Losses arising therefrom.
Appears in 2 contracts
Samples: Contribution Agreement (Spectra Energy Corp.), Contribution Agreement
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser In any case where an Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than Party recovers from third Persons any amount in respect of a breach of or inaccuracy in any Fundamental Representations or any matter with respect to which an Indemnitor has indemnified it pursuant to this Article XI, such Indemnified Party shall promptly pay over to the Indemnitor the amount so recovered (after deducting therefrom the full amount of the representations and warranties contained expenses incurred by it in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Partiesprocuring such recovery), as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses but not in excess of the Deductiblesum of (i) any amount previously so paid by the Indemnitor to or on behalf of the Indemnified Party in respect of such matter and (ii) any amount expended by the Indemnitor in pursuing or defending any claim arising out of such matter.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party party be liable to any Indemnified Party for any special, incidental, consequential (including loss of revenues or profits), exemplary or punitive damages or treble diminution of value or any damages based on any type of multiple, whether arising under any legal or equitable theory or arising under or in connection with this Agreement, all of which are hereby excluded by agreement of the parties regardless of whether or not any party to this Agreement has been advised of the possibility of such damages.
(c) Aon shall not be required to indemnify and hold harmless any Buyer Group Member pursuant to Section 11.1(a) to the extent the matter in question was included in the computation of the Net Worth Adjustment Amount pursuant to Section 4.5.
(d) Except for remedies that cannot be waived as a matter of law and injunctive and provisional relief (including specific performance), other than indemnification if the Closing occurs, this Article XI shall be the exclusive remedy for amounts paid breaches of this Agreement (including any covenant, obligation, representation or payable warranty contained in this Agreement or in any certificate delivered pursuant to third parties this Agreement) or otherwise in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall takethe sale of the Shares contemplated hereby. Anything herein to the contrary notwithstanding, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware no breach of any event representation, warranty, covenant or circumstance that would be reasonably expected to, or does, agreement contained herein shall give rise theretoto any right on the part of Aon or Buyer, provided that any costs after the consummation of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant the purchase and sale of the Shares contemplated by this Agreement, to rescind this Agreement shall be net or any of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)transactions contemplated hereby.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Aon Corp), Stock Purchase Agreement (Ace LTD)
Limitations. (a) Subject In no event shall the Seller have liability under Section 8.2(a)(i) to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of extent a breach of a representation or inaccuracy in any Fundamental Representations warranty results from, relates to or any arises out of the representations and warranties contained in Section 3.5) unless and until T-Mobile Parties’ breach of the Purchaser Indemnified Existing Lease or the use or operation of the Seller Licenses by the T-Mobile Parties or their Affiliates thereunder. In no event shall the Seller’s aggregate liability under this Article 8 or otherwise pursuant to this Agreement exceed the Purchase Price (or portion thereof) actually received by the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled pursuant to bring a claim for only those Losses in excess of the Deductiblethis Agreement.
(b) Notwithstanding anything to In no event shall the contrary contained in this Agreement, (i) the maximum T-Mobile Parties’ aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) 8 exceed the Purchase Price; provided that in no event shall the foregoing limitation of liability apply to or Section 7.3(a) (other than in limit T-Mobile Parties’ liability, or the Seller’s remedies, with respect of a breach of or inaccuracy in any Fundamental Representations or any to the payment of the representations and warranties contained Purchase Price, including the remedies of the Seller set forth in Section 3.52.1(b), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Notwithstanding any other provisions of this Agreement, in no event shall any Party be liable for any Losses that are lost profits, consequential, exemplary, special, incidental or punitive damages, or otherwise not constituting actual direct Losses, regardless of the theory of recovery, provided that this Section 8.3(c) shall not apply to any damages awarded to a third party pursuant to a final, non-appealable order; provided that, for the avoidance of doubt, this Section 8.3(c) shall not limit the T-Mobile Parties’ obligations to pay any interest, fees, costs or expenses that may become payable to the Seller pursuant to Section 7.2 or Section 7.3 2.1(b)(ii), including in respect connection the failure to pay the Purchase Price when due hereunder.
(d) The amount of any Loss Losses for which an Indemnified Party claims indemnification under this Agreement shall be reduced by the amount of by: (i) any amounts insurance proceeds actually recovered received by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less (net of any increases in premiums or other costs attributable thereto); and (ii) any indemnification or reimbursement payments actually received by the amount Indemnified Party from third parties (other than insurers) with respect to such Losses (net of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredattributable thereto).
(e) Each Indemnified of the Parties acknowledges and agrees that the Seller Licenses and the transactions contemplated by this Agreement are unique and each of the Seller and the T-Mobile Parties would not have an adequate remedy at law for money damages in the event that this Agreement has not been performed in accordance with its terms, and therefore agrees that, in addition to all other remedies available at law or in equity, the other Party shall takebe entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement by the other (as applicable), and cause its Affiliates to take, all commercially reasonable steps specifically enforce the terms and provisions of this Agreement to mitigate any Loss upon becoming aware of any event prevent breaches or circumstance that would be reasonably expected tothreatened breaches of, or doesto enforce compliance with, give rise theretothe covenants and obligations of the other (as applicable). Each Party agrees that it will not oppose the granting of an injunction, provided specific performance and other equitable relief on the basis that any costs other Party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity (subject to such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant Party’s rights to defend such matter on its merits). Any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be net required to provide any bond or other security in connection with any such order or injunction. The foregoing shall not be deemed to be or construed as a waiver or election of remedies by any of the proceeds Parties, and each of the Parties expressly reserve any and all rights and remedies available to them at law or in equity in the event of any third-party insurance coverage actually received breach or default by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)other Parties under this Agreement.
Appears in 2 contracts
Samples: License Purchase Agreement (T-Mobile US, Inc.), License Purchase Agreement (T-Mobile US, Inc.)
Limitations. The indemnifications provided for in this Article 12 shall be subject to the following provisions:
(a) Subject to the additional limitations set forth below in this Section 7.5, Seller The Selling Stockholders shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(athis Article 12 until the aggregate amount of all Losses in respect of indemnification under section 12.2 exceeds US$200,000 (the “Deductible Amount”), in which event the Selling Stockholders shall only be required to pay or be liable for Losses in respect of such claims in excess of the Deductible Amount. In addition, the Selling Stockholders shall not be required to pay any amount with respect to any individual Loss of less than US$10,000 (the “De Minimis Amount”). The foregoing Deductible Amount and De Minimis Amount shall not be applicable, however, in respect of claims for Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation or any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Selling Stockholders or their Affiliates pursuant to this Agreement;
(b) and Purchaser UEC shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(athis Article 12 until the aggregate amount of all Losses in respect of indemnification under section 12.3 exceeds the Deductible Amount, in which event UEC shall only be required to pay or be liable for Losses in respect of such claims in excess of the Deductible Amount. In addition, UEC shall not be required to pay any amount with respect to any individual Loss of less than the De Minimis Amount. The foregoing Deductible Amount and De Minimis Amount shall not be applicable, however, in respect of claims for Losses based upon, arising out of, with respect to or by reason of any breach of any UEC Fundamental Representation or non-fulfillment of any covenant, agreement or obligation to be performed by UEC pursuant to this Agreement;
(c) The aggregate amount of all Losses for which the Selling Stockholders shall be liable pursuant to:
(i) section 12.2(a) (other than those Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of the Fundamental Representations) shall not exceed US$4,000,000, provided that the Selling Stockholders may satisfy in full (and without further recourse) any obligations arising under section 12.2(a) by delivery to UEC of: (1) cash; (2) up to 2,844,950 Acquisition Shares, valued as of the date written notice of a Third Party Claim or a Direct Claim is given by the Indemnified Party pursuant to Section 12.9 (and for clarification, if the value as of the date written notice is provided is greater than the Deemed Issuance Price per Acquisition Share, proportionately fewer Acquisition Shares would need to be delivered in satisfaction of the Selling Stockholders’ indemnification obligations); or (3) any combination thereof; provided, that, for certainty, notwithstanding the deemed value of the Acquisition Shares in (2) above, where the Selling Stockholders have delivered an aggregate of 2,844,950 Acquisition Shares in satisfaction of obligations arising under section 12.2(a), the Selling Stockholders shall have no further liability in respect of a such obligations; and
(ii) section 12.2(a), for Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of or inaccuracy in any the Fundamental Representations or any of the representations Representations, and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5section 12.2(b), as applicable, shall not exceed 20% a dollar amount (the “Fundamental Cap”) equal to the aggregate Acquisition Consideration held by the Selling Stockholders as of the Aggregate Consideration and (ii) date written notice of a Third Party Claim or a Direct Claim is given by the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Indemnified Party pursuant to Section 7.2 or Section 7.3 12.9 (the “Held Acquisition Consideration”), it being understood that the Selling Stockholders may satisfy in respect full any obligations under section 12.2(a), and section 12.2(b) by delivery to UEC of any Loss shall be reduced by combination of the amount of any amounts actually recovered by the Indemnified Party under insurance policiesfollowing, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal up to the aggregate amount value of the recovery shall be promptly made to Fundamental Cap: (1) cash; or (2) the applicable Indemnifying PartyHeld Acquisition Consideration (with Acquisition Consideration being delivered in fulfillment of this obligation in the following order: first, Acquisition Shares, second, Acquisition Warrants, and third, the NPI Royalty).
(d) In no event The aggregate amount of all Losses for which UEC shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, pursuant to:
(i) section 12.3(a) (other than indemnification those Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of the UEC Fundamental Representations) shall not exceed US$4,000,000; and
(ii) section 12.3(a), for amounts paid Losses based upon, arising out of, with respect to or payable to third parties by reason of any inaccuracy in or breach of the UEC Fundamental Representations and 12.3(b) shall not exceed the Fundamental Cap. Notwithstanding the foregoing, the Deductible and the limitations on liability set forth in this section 12.4 shall not be applicable in respect of any Third Party Claim claims for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall takeLosses based upon, and cause its Affiliates arising out of, with respect to take, all commercially reasonable steps to mitigate any Loss upon becoming aware or by reason of any event claim made under this Agreement which is based upon, or circumstance that would be reasonably expected relates to, in any manner whatsoever intentional misconduct, intentional misrepresentation or does, give rise thereto, provided that any costs fraud by the Indemnifying Party (and no such claim shall be counted towards the Deductible of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereofParty, deductibles or retentions thereunder and increases in premiums as a result thereofapplicable).
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Uranium Energy Corp)
Limitations. (a) Subject Notwithstanding anything contained herein to the additional limitations set forth below in this Section 7.5contrary, Seller shall not be liable to in respect of any indemnification obligation for Losses of the Purchaser Indemnified Parties for indemnification Buyer Indemnitees under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a7.2(a)(i) (other than in respect of a (x) fraud or willful misconduct or (y) breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5Fundamental Representations of Seller) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred aggregate cumulative amount of Losses in excess of 0.5% of the Aggregate Consideration for which indemnification would otherwise be available but for this Section 7.3(a) exceeds $150,000 (the “DeductibleThreshold”) in the aggregate), in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall Buyer Indemnitees will be entitled to bring a claim recover all Losses from the first dollar. Seller’s aggregate liability in respect of any indemnification obligation for only those Losses (i) under Section 7.2(a)(i), other than in excess respect of (x) fraud or willful misconduct or (y) any breach of the DeductibleFundamental Representations of Seller, shall not exceed the Cap, and (ii) otherwise under this Agreement, shall not exceed the Purchase Price.
(b) Notwithstanding anything contained herein to the contrary contained contrary, Buyer shall not be liable in this Agreement, (i) the maximum aggregate liability respect of Seller or Purchaser under this Article VII any indemnification obligation for Losses indemnified of the Seller Indemnitees under Section 7.2(a) or Section 7.3(a7.2(b)(i) (other than in respect of a (x) fraud or willful misconduct or (y) breach of or inaccuracy in any Fundamental Representations or any of the representations Fundamental Representations of Buyer) unless and warranties contained until the aggregate cumulative amount of Losses for which indemnification would otherwise be available but for this Section 7.3(b) exceeds the Threshold, in which case the Seller Indemnitees will be entitled to recover all Losses from the first dollar. Buyer’s aggregate liability in respect of any indemnification obligation for Losses (i) under Section 3.57.2(b)(i), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)(x) fraud or Article VIII willful misconduct or (y) any breach of the Fundamental Representations of Buyer, shall not exceed the Aggregate ConsiderationCap, and (ii) otherwise under this Agreement, shall not exceed the Purchase Price.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect The amount of any Loss indemnification payable under this Article VII shall be reduced by the an amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall proceeds actually received by an Indemnitee under any Indemnifying Party be liable to insurance policy, or from any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties party in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, such claim less all out-of-pocket costs and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event expenses incurred by such Indemnitee in connection with obtaining such insurance proceeds or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party recovery (including reasonable attorneys’ fees, any deductible, any retention, any retroactive premium adjustment on the account of or arising from such claim or Losses, and the present value of any increases in insurance coverage actually received by premiums on the Indemnified Party (account of or arising from such claim or Losses or the amount cost of cancellation of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder insurance policy and increases in premiums as a result thereofthe increased cost for any replacement policy).
Appears in 2 contracts
Samples: Purchase Agreement (Fifth Street Asset Management Inc.), Purchase Agreement (NewStar Financial, Inc.)
Limitations. (a) Subject The Company shall only be bound to indemnify the E Investors if and when the aggregate amount owed to the additional limitations set forth below E Investors by reason of the implementation of this warranty exceeds EUR 200,000, said amount representing a threshold (seuil de déclenchement) and not a deductible (franchise), provided however, in the case of fraud, this Section 7.5, Seller threshold amount shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductibleapply.
(b) Notwithstanding anything In addition, said indemnification shall be limited to an aggregate amount corresponding to 50% of the contrary contained in price paid up by such E Investor for the E shares subscribed pursuant this Agreement, (i) provided however that the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, above limitation shall not exceed 20% apply in case of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller fraud, willful misconduct or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationgross negligence.
(c) Payments by an Indemnifying Party pursuant Any Loss giving right to Section 7.2 or Section 7.3 in respect of indemnification under this Article 5 shall be determined as follows:
(i) any Loss shall be indemnified only once by the Company, and any Loss suffered by the Company shall be reduced by the amount any payment (net of any amounts actually recovered taxes and costs related thereto) received by the Indemnified Party under Company pursuant to an insurance policies, indemnities policy or other reimbursement arrangements otherwise to compensate for the said Loss.
(ii) the E Investors shall also be indemnified by the Company for the reasonable lawyer’s fees and costs which they may incur in connection with the enforcement of the provisions of this Article 5 with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party valid claim thereunder; and
(iii) with respect to any Loss for which any such Person has been indemnified hereundersuffered by the Company, then a refund equal to the aggregate amount of the recovery indemnification due by the Company to each E Investor pursuant to Section 5.1 above, shall be promptly made proportionate to the applicable Indemnifying Partypercentage of Series E Preferred Shares issued pursuant to this Agreement and held by such E Investor, at the time of occurrence of the relevant Loss in the share capital of the Company on a fully diluted basis.
(d) In no event The Company’s liability under this Article 5 shall any Indemnifying Party be liable to any Indemnified Party based on Section 5.1 (a) and (b) hereof. Approval by the E Investors, in their capacity as shareholders of the Company, of the Company’s annual accounts for any punitive or treble damagesfiscal year shall not constitute, other than indemnification for amounts paid or payable where applicable, any exception to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredthe foregoing.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Investment Agreement (Sequans Communications), Investment Agreement (Sequans Communications)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) Subject any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the additional limitations set forth below in this Section 7.5, Seller shall not be liable Company on or prior to the Purchaser Indemnified Parties for indemnification under Section 7.2(alatest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect any Claim arising out of a any breach of or inaccuracy in any Fundamental Representations or of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 3.59.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the Purchaser Indemnified Parties or aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the Seller Indemnified Parties, as applicable, have incurred Losses in excess extent of 0.5% of such excess; and (b) the Aggregate Consideration (the “Deductible”) Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate, ; provided that the foregoing limitations shall not apply in which the case of fraud by the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the DeductibleCompany.
(b4) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser Company shall not be liable under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than Agreement in respect of of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a breach of or inaccuracy in Direct Claim;
(b) any Fundamental Representations or any of the representations Loss which is contingent unless and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration until such contingent Loss becomes an actual Loss that is due and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.payable;
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount extent that such Loss arises as a result of the recovery shall be promptly made a failure by Glencore to the applicable Indemnifying Party.comply with any of its obligations under this Agreement;
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive changes in Applicable Law or treble damages, other than indemnification for amounts paid changes in generally accepted interpretation or payable to third parties in respect application of any Third Party Claim for which indemnification hereunder is otherwise required.Applicable Law; or
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware changes in Applicable Accounting Standards or generally accepted interpretation or application of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderApplicable Accounting Standards.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Investor Rights and Governance Agreement (Polymet Mining Corp), Investor Rights and Governance Agreement (Polymet Mining Corp)
Limitations. Notwithstanding anything set forth in this Agreement to the contrary:
(a) Subject to the additional limitations set forth below in this Section 7.5, The Seller shall not be liable have any liability under this Agreement other than a right of the Buyer to set-off against amounts due under the Note in accordance with Section 6.6 and shall not have any liability in the aggregate at any time in excess of an amount equal to the Purchaser Indemnified Parties for indemnification amounts due under the Note; provided, however, that the foregoing limitation shall not apply to recovery under Section 7.2(a6.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than any inaccuracy in respect of a or breach of or inaccuracy in any Fundamental Representations or any the representations and warranties in Section 2.8 (Compliance With Laws), for which the Buyer shall also be entitled to set-off against the Launch Products Deferred Payments and the Hycet Deferred Payments in accordance with Section 6.6.
(b) The Buyer shall not be entitled to recovery under Section 6.2(a) unless the amount of damages resulting from an individual breach of the representations and warranties contained in (or series of related breaches) exceeds $5,000.
(c) Except for breaches of any Fundamental Representations, the Buyer shall not be entitled to recovery under Section 3.56.2(a) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% aggregate amount of the Aggregate Consideration (damages due to the “Deductible”) in the aggregateBuyer exceeds $90,000, in which case event the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, Buyer shall be entitled to bring a claim recovery for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the full amount of any amounts actually recovered by damages from the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyfirst dollar.
(d) In no event For purposes of this Section 6, any inaccuracy in or breach of any representation or warranty shall any Indemnifying Party be liable determined without regard to any Indemnified Party for any punitive materiality or treble damages, other than indemnification for amounts paid similar qualification contained in or payable otherwise applicable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredsuch representation or warranty.
(e) Each Indemnified Party The Buyer shall take, not be entitled to recovery for any damages to the extent such damages are reserved for as a liability or contra-asset in the Closing Balance Sheet as finally determined in accordance with this Agreement and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware are taken into account in the determination of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderthe Adjusted Working Capital.
(f) All Losses indemnified pursuant damages recoverable by the Buyer as a right of the Buyer to this Agreement set-off against amounts due under the Note, the Launch Products Deferred Payments and/or the Hycet Deferred Payments, as applicable, in accordance with Section 6.6 shall be net of any proceeds the proceeds Buyer actually recovers under any available insurance less any related costs and expenses, including the aggregate cost of pursuing any thirdrelated insurance claims and any related increases in insurance premiums. Following the Closing, the Buyer and the Company Parties shall use commercially reasonable efforts to claim and recover in full any damages or losses under any insurance policies maintained by or for the benefit of the Buyer or the Company Parties or otherwise covering the business of the Company Parties if and to the extent they are seeking indemnification for such damages or losses hereunder.
(g) Notwithstanding any other provision in this Agreement to the contrary, the Buyer shall not be entitled to a right of set-party insurance coverage actually received off against amounts due under the Note, the Launch Products Deferred Payments and/or the Hycet Deferred Payments, as applicable, in accordance with Section 6.6 for any for damage to reputation, lost business opportunities, lost profits, mental or emotional distress, incidental, special, consequential, exemplary, punitive, or indirect damages, interference with business operations or diminution in value.
(h) All amounts recovered by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums Buyer as a result thereof)right of set-off against amounts due under the Note, the Launch Products Deferred Payments and/or the Hycet Deferred Payments, as applicable, in accordance with Section 6.6 shall be treated by the Parties as an adjustment to the consideration for the Units.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Flamel Technologies Sa)
Limitations. (a) Subject Losses in respect of which an Indemnifying Party is required to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for make indemnification under Section 7.2(a) 9.1 shall be reduced by an amount equal to any insurance, indemnity, contribution or other similar payments actually paid to and Purchaser shall not be liable received by the applicable Indemnitee from any third party with respect to any claim giving rise to the Seller Indemnified Parties for Losses. If any insurance, indemnity, contribution or other similar payments are paid to or received by any Indemnitee in a period after such Losses are incurred or indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of thereof is made, such Indemnitee shall promptly notify the representations Indemnifying Party and warranties contained in Section 3.5) unless and until pay the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled Indemnifying Party an amount equal to bring a claim for only those Losses in excess of the Deductiblesuch insurance benefits.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of which Seller and Stockholder are required to indemnify a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Buyer Indemnified Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of all or any portion of the Additional Payment that has not been paid to Seller (including amounts actually recovered then held in the Escrow Account) as of the date of the Claim Notice in respect of which indemnification is sought and which amounts shall be retained by Buyer as an offset.
(c) In no event shall Stockholder’s and Seller’s combined, aggregate obligations, on the Indemnified Party under insurance policiesone hand, indemnities or Buyer’s aggregate obligations, on the other reimbursement arrangements with respect to such Losses less hand, exceed the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyPurchase Price.
(d) In no event Neither the Buyer Indemnified Parties nor the Seller Indemnified Parties shall any Indemnifying Party be liable entitled to any Indemnified Party indemnification for any punitive or treble damages, other than indemnification for amounts paid or Losses unless and until such time as the cumulative aggregate amount of all indemnifiable Losses payable to third parties in respect of any Third Party Claim for such Indemnitee exceeds one hundred thousand dollars ($100,000), at which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation time the Indemnitee shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant entitled to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (recover the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)indemnifiable Losses.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Drugstore Com Inc), Asset Purchase Agreement (Drugstore Com Inc)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary herein, the Equity Holders shall not be liable under Section 6.1(a) or clause (x) of Section 8.2 unless and until the aggregate Damages for which they would otherwise be liable under Section 6.1(a) and clause (x) of Section 8.2 exceed $1,000,000 (at which point the Equity Holders shall become liable for the aggregate Damages under Sections 6.1(a) and clause (x) of Section 8.2 and not just amounts in excess of $1,000,000); provided, however, that the limitation set forth in this paragraph (a) shall not apply with respect to any liability with respect to breaches of Section 2.9(o) or, for the avoidance of doubt, liability under clauses (y) or (z) of Section 8.2.
(b) From and after the Effective Time, except in the case of fraud or knowing misrepresentation, the sole and exclusive remedy of the Buyer with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement, Agreement (iincluding any claim under Article VIII) or arising out of or in connection with the maximum aggregate liability of Seller or Purchaser Company's obligations under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of Agreement shall be the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationIndemnification Escrow Shares.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 No Equity Holder shall have any right of contribution against the Company or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party Surviving Corporation with respect to any Loss for which breach by the Company of any such Person has been indemnified hereunderof its representations, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partywarranties, covenants or agreements.
(d) In no event Notwithstanding anything to the contrary set forth herein, nothing in this Article VI or in Article VIII is intended to create an affirmative indemnity obligation by any Equity Holder for fraud or knowing misrepresentation (it being understood that the foregoing shall not limit any Indemnifying Party be liable right of the Buyer to assert any Indemnified Party for any punitive claim based on fraud or treble damages, other than knowing misrepresentation not based on the indemnification for amounts paid or payable to third parties obligations set forth in respect Sections 6.1 and 8.2 of any Third Party Claim for which indemnification hereunder is otherwise requiredthis Agreement (as affirmed by Section 4 of the Stockholders Agreement and Section 2 of the Management Participant Agreement)).
(e) Each Indemnified Party shall take, and cause its Affiliates Any recovery of Damages by the Buyer for indemnification pursuant to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation Article VI shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the offset by any insurance proceeds of any third-party insurance coverage actually received by the Indemnified Party (Buyer corresponding to such indemnification claim. To the amount extent the Buyer receives any such insurance proceeds after the delivery of such Indemnification Escrow Shares from the Equity Holders pursuant to Section 3 of the Indemnification Escrow Agreement, the Buyer will issue and deliver that number of Buyer Common Shares equal to the value of the insurance proceeds determined net to the Equity Holders or to the Escrow Agent, to be allocated among the Equity Holders in accordance with Article I of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Akamai Technologies Inc), Merger Agreement (Akamai Technologies Inc)
Limitations. Notwithstanding anything to the contrary contained herein or under any applicable law:
(a) Subject No Acquiror Indemnified Person may recover any amounts in respect of any claim for indemnification that is made pursuant to this Agreement and does not involve: (i) a Fundamental Representation or (ii) Fraud, (iii) Pre-Closing Taxes, (iv) any matter for which specific indemnification is available to an Acquiror Indemnified Person, unless and until the aggregate amount of Damages that may be claimed exceeds US $50,000 (the “Threshold”), and once the Threshold has been reached, the Acquiror Indemnified Person may make claims for indemnification and may receive amounts for all Damages (including the amount of the Threshold) pursuant to the additional limitations terms herein.
(b) The total and aggregate indemnification under this Agreement and applicable law shall be limited to (A) the aggregate amount of cash the Seller actually received pursuant to Section 2.2 hereof with respect to (i) breaches of the Fundamental Representations; (ii) breaches of the Company’s and/or Seller’s covenants under this Agreement, and (B) an aggregate amount of A$1,500,000 for breach of the representation and warranties set forth below in Section 3.8 (Intellectual Property), otherwise the total and aggregate indemnification under this Agreement and/or applicable law shall be limited to the aggregate amount A $900,000. In the case of Fraud, such Liability for Damages shall be unlimited with respect to Seller. Nothing shall prevent or restrict the Acquiror Indemnified Person from seeking (A) injunctive or other equitable relief to enjoin the breach, or threatened breach, of any provision of this Agreement or any Transaction Document, (B) specific performance of the provisions of this Agreement or any Transaction Document, and (C) declaratory relief with respect to this Agreement or any Transaction Document. In any event and notwithstanding anything to the contrary herein or under any applicable law or agreement, will the aggregate liability of the Seller under this Agreement exceed the aggregate amount of cash the Seller actually received pursuant to Section 7.52.2 hereof.
(c) Damages shall be calculated net of actual recoveries under existing insurance policies (net of any applicable collection costs and reserves, Seller deductibles, premium adjustments and retrospectively rated premiums), it being understood that Acquiror Indemnified Person shall be obligated to take reasonable actions to reduce damages seek recovery under any insurance policies with respect to any particular Damages and the failure of an Acquiror Indemnified Person to seek recovery under any insurance policies shall not in any way affect or modify such Acquiror Indemnified Person’s rights under this Article 11.
(d) In determining the existence or amount of any Damages in respect of the failure of any representation or warranty to be true and correct as of any particular date or the breach of or default in connection with any covenant or agreement, any knowledge materiality or Material Adverse Change standard or qualification, or standard or qualification that a matter be or not be “reasonably expected” or “reasonably likely” to occur, contained in or otherwise applicable to such representation, warrant, covenant or agreement shall be disregarded; provided that such standard or qualification shall not be liable disregarded for the purposes of the initial determination of whether there was a failure of such representation or warranty to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) be true and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of correct, or a breach of or inaccuracy default in connection with any Fundamental Representations covenant or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Partiesagreement, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductibleaforesaid.
(be) Notwithstanding anything to the contrary contained in this Agreementherein, (i) Seller will not have any right of indemnification, contribution or right of advancement from Acquiror, the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations Company or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Acquiror Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party Person with respect to any Loss for which Damages claimed by any such Acquiror Indemnified Person, the rights and remedies of the Acquiror Indemnified Persons after the Closing shall not be limited by any investigation made, disclosure received, or knowledge obtained, by or on behalf of any Acquiror Indemnified Person has been indemnified hereunder, then a refund equal prior to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall Closing regarding any Indemnifying Party be liable to any Indemnified Party for any punitive failure, breach or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that (B) any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds waiver of any third-party insurance coverage actually received by condition to the Closing related thereto and (iii) if an Acquiror Indemnified Party (Person’s claim under this Article 11 may be properly characterized in multiple ways in accordance with this Article 11 such that such claim may or may not be subject to different caps and other limitations depending on such characterization, then such Acquiror Indemnified Person shall have the amount of right to characterize such proceeds determined net of all costs of indemnifiable matter in a manner that maximizes the recovery thereof, deductibles or retentions thereunder and increases permitted in premiums as a result thereof)accordance with this Article 11.
Appears in 2 contracts
Samples: Share Purchase Agreement (Medigus Ltd.), Share Purchase Agreement (ParaZero Technologies Ltd.)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller The Indemnitors shall not be liable required to the Purchaser Indemnified Parties make any indemnification payment pursuant to Section 10.02(a)(i) or Section 10.02(a)(ii) for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than any inaccuracy in respect of a or breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration Company in this Agreement until such time as the total amount of all Damages (including the Damages arising from such inaccuracy or breach and all other Damages arising from any other inaccuracies in or breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds an amount equal to $500,000 (the “Deductible”) in the aggregateaggregate (it being understood that if the total amount of such Damages exceeds the Deductible, in which case then the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, Indemnitees shall be entitled to bring a claim be indemnified against and compensated and reimbursed only for only those Losses such Damages that are in excess of the Deductible).
(b) The maximum liability of the Indemnitors under Sections 10.02(a)(i) and 10.02(a)(ii) shall be equal to $8,000,000.
(c) The limitations set forth in Section 10.03(a) and (b) shall not apply to any claim for fraud or intentional misrepresentation or any claim for indemnification which arises from or is a result of or directly or indirectly connected with, any breach of a Fundamental Representation. The maximum liability of each Indemnitor under Section 10.02 shall be equal to such Indemnitor’s Pro Rata Share of Aggregate Merger Consideration.
(d) Absent fraud or intentional misrepresentation, the indemnification provisions contained in this Article 10 are intended to provide the sole and exclusive remedy following the Closing as to all Damages any Indemnitee may incur arising from or relating to this Agreement, the Merger or the transactions contemplated hereby (it being understood that nothing in this Section 10.03(d) or elsewhere in this Agreement shall affect the parties’ rights to specific performance or other equitable remedies with respect to the covenants referred to in this Agreement or to be performed after the Closing or any rights arising out of claims Parent or the Surviving Corporation may have under the letters of transmittal delivered pursuant to Section 2.08). Notwithstanding anything to the contrary contained set forth herein, Parent may recover from the General Escrow Fund any Damages which are suffered or incurred by any of the Indemnitees or to which any of the Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and which arise from or as a result of, or are connected with any fraud or intentional misrepresentation of the Company or any of its Representatives (whether or not such actions have been authorized) in this Agreement, (i) connection with the maximum aggregate liability due diligence investigation conducted by or on behalf of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than Parent in respect connection with its consideration of a breach of or inaccuracy in any Fundamental Representations the Merger or any of the representations other transactions contemplated hereby or the negotiation, execution and warranties contained in Section 3.5), as applicable, shall not exceed 20% performance of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationAgreement.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Merger Agreement (Mellanox Technologies, Ltd.), Merger Agreement
Limitations. (a) Subject Except as otherwise provided in Section 7.8, Buyer shall be required to the additional limitations set forth below in this Section 7.5, Seller shall not be liable make any indemnification payment pursuant to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a any breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5made by Buyer until such time as the total amount of all indemnifiable Losses (including Losses arising from such breach and all other indemnifiable Losses arising from any other breaches of any representations or warranties) unless and until that have been suffered or incurred by all of the Purchaser Paragon Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration collectively exceeds $50,000 (the “DeductibleDeductible Amount”) in ). In such event, if the aggregatetotal amount of such indemnifiable Losses exceeds the Deductible Amount, the Paragon Indemnified Parties shall be entitled, in which case accordance with the Purchaser Indemnified Parties or the Seller Indemnified Partiesprovisions in this Article VII, as applicable, shall to be entitled to bring a claim indemnified against and compensated and reimbursed for only those all indemnifiable Losses in excess of the DeductibleDeductible Amount. Except as otherwise provided in Section 7.7, in no event shall the aggregate liability of the Buyer pursuant to Sections 7.2(a), (b) or (c) exceed an amount equal to $5,000,000 (the “Cap Amount”). Buyer shall have the right to reacquire Buyer Shares from the Shareholders, if any of such shares are then held, in satisfaction of an indemnification claim with each share being deemed to have the same value per share as of the end of the Closing Date.
(b) Notwithstanding anything Except as otherwise provided in Section 7.8, Paragon and Intermezzo shall not be required to the contrary contained in this Agreement, (imake any indemnification payment pursuant to Section 7.1(a) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a any breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained made by either of them until such time as the total amount of all indemnifiable Losses (including Losses arising from such breach and all other indemnifiable Losses arising from any other breaches of any representations or warranties) that have been suffered or incurred by all of the Buyer Indemnified Parties collectively exceeds the Deductible Amount. In such event, if the total amount of such indemnifiable Losses exceeds the Deductible Amount, the Buyer Indemnified Parties shall be entitled, in accordance with the provisions in this Article VII, to be indemnified against and compensated and reimbursed for all indemnifiable Losses in excess of the Deductible Amount. Except as otherwise provided in Section 3.5)7.7, as applicable, in no event shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII each of Paragon and Intermezzo pursuant to Section 7.1(a), (other than in respect of Losses indemnified under Section 7.2(c)b) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments exceed the Cap. Paragon and Intermezzo shall have the right to satisfy any indemnification claim by an Indemnifying Party pursuant tendering to Section 7.2 or Section 7.3 in respect of any Loss the Buyer Indemnified Parties Buyer Shares which shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect deemed to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then have a refund equal to the aggregate amount value of the recovery shall be promptly made to closing price of such shares on the applicable Indemnifying Party.
(d) Closing Date. In no event will Paragon and Intermezzo have any liability to pay an indemnification claim that exceeds the value of the Buyer Shares and all payments they have received under this Agreement and the Assignment Agreement, it being understood that Buyer shall any Indemnifying Party be liable have the right to any Indemnified Party exercise its set-off right for any punitive or treble damages, other than indemnification for further amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredunder Section 7.6 hereof.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Purchase Agreement (SouthPeak Interactive CORP), Purchase Agreement (SouthPeak Interactive CORP)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability Buyer Indemnified Parties shall not be permitted to recover any Damages incurred or suffered by Buyer Indemnified Parties resulting from any breach by the Company of Seller or Purchaser under this Article VII for Losses indemnified under its representations and warranties pursuant to Section 7.2(a) or Section 7.3(a9.1(a) (other than in with respect of a breach of or inaccuracy in any to the Fundamental Representations or any of Representations) until all Damages incurred by the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party Buyer Indemnified Parties pursuant to Section 7.2 or Section 7.3 such section exceed $150,000 in respect of any Loss the aggregate, at which point the Buyer shall be reduced by entitled to recover all such Damages in excess of $150,000. Solely for the purpose of determining the existence of, and calculating the amount of any amounts actually recovered by the Indemnified Party under insurance policiesDamages arising out of or resulting from, indemnities or other reimbursement arrangements with respect to such Losses less the amount any breach of any costs representation or warranty of obtaining the Company contained in this Agreement (other than any breach of any representation or warranty contained in Section 3.6(ii) (Absence of Certain Changes)) or the certificates required by Sections 7.2(a), and 7.3(a), such recovery, including any resulting increase in premium representation or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect warranty shall be read without regard to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyMaterial Adverse Effect or materiality qualifiers contain therein.
(db) In no event shall any Indemnifying Party be responsible or liable to any Indemnified Party for any Damages or other amounts under this Article IX that are consequential, special or punitive or treble otherwise not actual damages; provided, however, that this sentence shall not apply to or limit in any respect any claim by the Company Participating Equityholders based on a breach of Section 2.5(c) or 2.5(d) (other than indemnification for amounts paid or any such damages payable to third parties in respect of any Third Party Claim parties). Each party shall (and shall cause its Affiliates to) use commercially reasonable efforts to mitigate the Damages for which indemnification hereunder is provided to it under this Article IX.
(c) The amount of Damages recoverable by an Indemnified Party under this Article IX with respect to an indemnity claim shall be reduced by the amount of any insurance payment received by such Indemnified Party (or an Affiliate thereof) with respect to such indemnity claim less any costs of recovery and resulting increases in premiums. An Indemnified Party shall use reasonable commercial efforts to pursue, and to cause its Affiliates to pursue, all insurance claims to which it may be entitled in connection with any Damages it incurs, and the parties shall cooperate with each other in pursuing insurance claims with respect to any Damages or any indemnification obligations with respect to Damages. If an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already been indemnified by the Indemnifying Party, it shall pay to the Indemnifying Party, within 30 days of receiving such insurance payment, an amount equal to the excess of (i) the amount previously received by the Indemnified Party under this Article IX with respect to such claim plus the amount of the insurance payments received, over (ii) the amount of Damages with respect to such claim which the Indemnified Party has become entitled to receive under this Article IX.
(d) Except with respect to claims for equitable relief made with respect to breaches of any covenant or agreement contained in this Agreement, (i) the rights of the Indemnified Parties under this Article IX and Section 6.10(c) shall be the sole and exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims under, or otherwise requiredrelating to the transactions that are the subject of, this Agreement and (ii) the right to (x) seek recourse against the General Escrow Funds and the Tax Escrow Funds and (y) set-off set forth in Section 9.6 shall be the sole and exclusive means for the Buyer Indemnified Parties to collect any Damages for which they are entitled to indemnification under this Article IX. Without limiting the generality of the foregoing, in no event shall any party, its successors or permitted assigns be entitled to claim or seek rescission of the transactions consummated by this Agreement.
(e) Each Indemnified For purposes of this Article IX, (i) if the Company Participating Equityholders comprise the Indemnifying Party, any references to the Indemnifying Party shall take, and cause its Affiliates (except provisions relating to take, all commercially reasonable steps an obligation to mitigate make any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation payments) shall be Losses indemnified hereunder.
deemed to refer to the Indemnification Representative and (fii) All Losses indemnified pursuant if the Company Participating Equityholders comprise the Indemnified Party, any references to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (except provisions relating to an obligation to make or a right to receive any payments) shall be deemed to refer to the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Indemnification Representative.
Appears in 2 contracts
Samples: Merger Agreement (Centessa Pharmaceuticals LTD), Merger Agreement (Cornerstone Therapeutics Inc)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary herein, the Indemnifying Parties shall be liable under this Article VI for only that portion of the aggregate Damages which exceeds $2,500,000, and the maximum liability of the Company Stockholders hereunder shall not exceed the aggregate Value (as defined in the Escrow Agreement) of the Escrow Shares. For purposes solely of this Article VI, all representations and warranties in Article II (other than Sections 2.15 and 2.32) shall be construed as if the terms "material" and references to "Company Material Adverse Effect" (and variations thereof) were omitted from such representations and warranties.
(b) Except with respect to claims based on fraud on behalf of the Company or the Company Stockholders, after the Closing, the rights of the Indemnified Parties under this Article VI shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any representation or warranty contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant Except with respect to Section 7.2 claims based on fraud on behalf of the Company or Section 7.3 the Company Stockholders, the Parties agree that the sole recourse of the Indemnified Parties in respect of any Loss claims under this Article VI shall be the Escrow Shares and, other than the Escrow Shares, no Company Stockholders shall have any obligation to make any other payment or otherwise be liable to the Buyer, the Transitory Subsidiary, Surviving Corporation or any of the Indemnified Parties hereunder.
(d) No Company Stockholder, in its capacity as such, shall have any right of contribution against the Company or the Surviving Corporation with respect to any breach by the Company of any of its representations or warranties contained in this Agreement.
(e) The amount of any Damages of any Indemnified Party shall be determined net of any United States or foreign federal, state or local income Tax benefit realized by the Indemnified Party as a result of the incurrence of such Damages (net of any increased tax liability that results from the receipt of such indemnity payment) and shall be reduced by the any amount of any amounts actually recovered received by the Indemnified Party under any insurance policies, indemnities or other reimbursement arrangements policy with respect to the matter giving rise to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyDamages.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Merger Agreement (Staples Inc), Merger Agreement (Staples Inc)
Limitations. (a) Subject Notwithstanding anything to the additional limitations set forth below contrary in this Section 7.5Agreement, Seller except in the case of (A) fraud, willful breach or intentional misrepresentation or (B) the Multiple Closings Indemnification, (i) an Indemnified Party shall not be liable entitled to indemnification pursuant to Section 7.2 unless and until the total amount of the Losses incurred by all Indemnified Parties exceeds the amount equal to (x) the total Purchase Price received by the Selling Shareholder under Section 2.5 divided by (y) 140 (such amount, the “Basket”), in which event the Indemnified Parties shall be entitled to receive indemnification of the full amount of the Losses (including, for the avoidance of doubt, the initial Basket of such Losses, provided that any individual claim or related claims for Losses must exceed Twenty-Five Thousand Dollars (US$25,000)), and (ii) the aggregate Liability of the Indemnifying Parties to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser 7.2 shall not be liable limited to the Seller Indemnified Parties for indemnification total Purchase Price received by the Selling Shareholder under Section 7.3(a2.5.
(b) (other than in respect The amount of a breach of or inaccuracy in any Fundamental Representations or Losses incurred by any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, Party shall be entitled reduced by the net amount such Indemnified Party recovers (after deducting all attorneys’ fees, expenses and other costs of recovery) from any insurer under insurance policies with respect to bring a claim for only those such Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, sum of (i) the maximum aggregate liability of Seller or Purchaser reasonable out-of-pocket costs and expenses relating to collection under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5)such policies, as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) any deductible associated therewith to the maximum aggregate liability of Seller extent paid and (iii) any corresponding increase in insurance premiums or Purchaser other chargebacks resulting from, arising out of, or in connection with, insurance payments for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII the Losses. Such Indemnified Party shall not exceed the Aggregate Considerationuse commercially reasonable efforts to effect any such recovery.
(c) Payments For the avoidance of doubt, any Liability under this Agreement shall be determined without duplication of recovery by an Indemnifying reason of the state of facts giving rise to such Liability constituting a breach of more than one warranty, covenant or agreement, and no Indemnified Party pursuant shall be entitled to Section 7.2 recover the same Losses or Section 7.3 obtain payment, reimbursement or restitution for the same expenses more than once in respect of any Loss shall be reduced by the amount inaccuracy or breach of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount provision of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partythis Agreement.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Share Purchase Agreement (News Corp), Share Purchase Agreement (Bona Film Group LTD)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller Xxxxxxx shall not be liable obligated to indemnify or hold the Purchaser Indemnified Parties for indemnification JV Entity Group Members harmless with respect to any Losses or Expenses under Section 7.2(a12.1(a)(i) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.512.1(a)(ii) unless and until the Purchaser Indemnified Parties aggregate amount of all Losses and Expenses suffered, sustained or the Seller Indemnified Partiesincurred by JV Entity Group Members with respect to all matters for which indemnification is to be provided under Section 12.1(a)(i) or Section 12.1(a)(ii), as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration exceeds $3.0 million (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, (it being understood that such amount shall be entitled to bring a claim deductible for only those Losses in excess of the Deductiblewhich Xxxxxxx shall bear no indemnification responsibility).
(b) The aggregate amount required to be paid by Xxxxxxx pursuant to Section 12.1(a)(i) and Section 12.1(a)(ii) shall not exceed $22.5 million (the “Cap”).
(c) Notwithstanding anything to the contrary in this Agreement, the Deductible and the Cap shall not apply to Losses and Expenses resulting from or arising out of (i) any willful breach of any covenant, agreement or obligation or (ii) the breach or inaccuracy of any of the Xxxxxxx Fundamental Representations and Warranties.
(d) Notwithstanding anything to the contrary in this ARTICLE XII, in no event shall the aggregate amount to be paid by Xxxxxxx pursuant to Section 12.1(a) exceed $300 million.
(e) In any case where an Indemnified Party recovers from third Persons any amount in respect of any Losses or Expenses with respect to which an Indemnitor has indemnified it pursuant to this ARTICLE XII, such Indemnified Party shall promptly pay over to the Indemnitor the amount so recovered in respect of such Losses and Expenses (after deducting therefrom the full amount of the expenses incurred by such Indemnified Party in procuring such recovery (including, in the case of insurance proceeds, any deductible or self-insured retention amount)), but not in excess of the amount previously so paid by the Indemnitor to or on behalf of the Indemnified Party in respect of such Losses and Expenses.
(f) EXCEPT AS SET FORTH IN SECTION 12.6(i), (I) IN NO EVENT SHALL ANY PARTY BE LIABLE UNDER THIS ARTICLE XII FOR (X) ANY PUNITIVE DAMAGES OR (Y) (1) ANY DAMAGES RESULTING FROM OR ARISING OUT OF ANY BREACH OF ANY WARRANTY OR THE INACCURACY OF ANY REPRESENTATION CONTAINED IN THIS AGREEMENT WHICH (A) WOULD NOT, AS OF THE DATE HEREOF, BE THE REASONABLY FORESEEABLE RESULT OF A BREACH OF SUCH WARRANTY OR INACCURACY OF SUCH REPRESENTATION OF THE NATURE GIVING RISE TO THE RELEVANT INDEMNIFIABLE EVENT OR (B) WERE NOT PROXIMATELY CAUSED BY THE RELEVANT INDEMNIFIABLE EVENT OR (2) ANY DAMAGES (OTHER THAN THOSE RESULTING FROM OR ARISING OUT OF ANY BREACH OF ANY WARRANTY OR THE INACCURACY OF ANY REPRESENTATION CONTAINED IN THIS AGREEMENT) WHICH ARE NOT THE REASONABLY FORESEEABLE RESULT OF THE RELEVANT INDEMNIFIABLE EVENT OR WERE NOT PROXIMATELY CAUSED BY THE RELEVANT INDEMNIFIABLE EVENT, EXCEPT TO THE EXTENT ANY SUCH DAMAGES DESCRIBED IN THE FOREGOING CLAUSES (X) AND (Y) ARE FINALLY DETERMINED TO BE PAYABLE AND ACTUALLY PAID TO A THIRD PARTY IN RESPECT OF A THIRD PERSON CLAIM IN ACCORDANCE WITH THE TERMS OF THIS ARTICLE XII, AND (II) WITH RESPECT TO THE INDEMNITIES PROVIDED UNDER SECTIONS 12.1(a)(iv) AND 12.2(b)(i), IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUES OR PROFITS, EXCEPT TO THE EXTENT ANY SUCH DAMAGES ARE FINALLY DETERMINED TO BE PAYABLE AND ACTUALLY PAID TO A THIRD PARTY IN RESPECT OF A THIRD PERSON CLAIM IN ACCORDANCE WITH THE TERMS OF THIS ARTICLE XII.
(g) Except (i) for remedies arising under the JV Entity Ancillary Agreements, Company Ancillary Agreements, Partner Ancillary Agreements and Xxxxxxx Ancillary Agreements (which remedies shall be governed exclusively by the terms thereof and shall not be limited by the terms of this Agreement), (ii) as set forth in Section 12.6(i) and (iii) injunctive and provisional relief (including specific performance), if the Closing occurs, this ARTICLE XII shall be the sole and exclusive remedy for breaches of this Agreement (including any covenant, obligation, representation or warranty contained in this Agreement) or otherwise in respect of the transactions contemplated hereby. For the avoidance of doubt, no remedy related to or arising from any breach of any JV Entity Ancillary Agreement, Company Ancillary Agreement, Partner Ancillary Agreement or Xxxxxxx Ancillary Agreement shall be available under this ARTICLE XII. Subject to Section 12.6(i), the parties may not avoid the limitations on liability, recovery and recourse set forth in this ARTICLE XII by seeking damages for breach of contract, tort or pursuant to any other theory or liability. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. Anything herein to the contrary notwithstanding, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of the JV Entity, the Company, Partner or any Xxxxxxx Party, after the consummation of the transactions contemplated by this Agreement, to rescind this Agreement or any of the transactions contemplated hereby; provided, however, in the event that the Xxxxxxx Investment or the Partner Investment occurs prior to the Xxxxxx Transaction and the Xxxxxx Transaction fails to be consummated for any reason whatsoever and the Xxxxxx Merger Agreement is terminated, the parties hereto agree that concurrently with the termination of the Xxxxxx Merger Agreement, (I) JV Entity shall return to Xxxxxxx and Partner the Xxxxxxx Investment Amount and the Partner Investment Amount, respectively, to the extent paid to JV Entity prior to such time, (II) Xxxxxxx LLC and Partner shall return to JV Entity the JV Entity LLC Agreement, and the Common Units (other than the Common Units issued to Xxxxxxx LLC in exchange for the Initial JV Membership Interest) and Preferred Units purchased hereby shall, without any further action by any party, automatically be cancelled and deemed returned to JV Entity, and (IV) other than the obligations set forth in clauses (I) and (II) of this proviso, the parties shall have no further obligations under this Agreement and Xxxxxxx and Partner shall have no rights, title or interest in or to the Xxxxxxx Units (other than the Common Units issued to Xxxxxxx LLC in exchange for the Initial JV Membership Interest, which shall be retained by Xxxxxxx LLC) or the Partner Units, respectively. Notwithstanding anything to the contrary in this Agreement, (ix) Xxxxxxx shall not be required to indemnify any JV Entity Group Member for any Losses to the maximum aggregate extent the liability underlying such Losses was included as a current liability in the computation of Seller the Final Closing Net Working Capital Amount and (y) it is intended that the provisions of this Agreement will not result in a duplicative payment of any amount required to be paid under this Agreement, and this Agreement shall be construed accordingly.
(h) In the event it is finally determined that any JV Entity Group Member is entitled to be indemnified pursuant to this Article XII for any Losses or Purchaser Expenses, such Losses and/or Expenses shall be paid by the Indemnitor to the JV Entity. Xxxxxxx may, at its option, satisfy any indemnification obligation for Losses hereunder (other than pursuant to Section 12.1(a)(iv)) in excess of the first $22,500,000 of Losses payable by Xxxxxxx under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) XII (other than pursuant to Section 12.1(a)(iv), in whole or in part, by surrendering a number of Common Units with a value equal to the amount of all or such part of such indemnification obligation (based on the Fair Market Value (as defined in the JV Entity LLC Agreement) of such equity as of the time of surrender).
(i) Nothing in this ARTICLE XII shall operate to limit the liability of Xxxxxxx to the JV Entity Group Members in the event Xxxxxxx is finally determined by a court of competent jurisdiction to have committed actual fraud with specific intent to deceive any JV Entity Group Member with respect of a breach of or inaccuracy in any Fundamental Representations or any of to the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationexpressly made herein.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Contribution and Investment Agreement (Allscripts Healthcare Solutions, Inc.), Contribution and Investment Agreement
Limitations. (a) Subject Any indemnity payment hereunder shall be treated for Tax purposes as an adjustment of the Purchase Price to the additional limitations set forth below in this Section 7.5extent such characterization is proper or permissible under relevant Tax law, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) including court decisions, statutes, regulations and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductibleadministrative promulgations.
(b) Notwithstanding anything to For purposes of determining the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect amount of any Loss Losses, such amount shall be reduced by the amount of any amounts insurance benefits and proceeds (collectively, “Insurance Benefits”) received or otherwise payable to Buyer or the Company (or deemed paid to thereto pursuant to the next sentence) in respect of the Losses (net of any deductible amounts); provided that Buyer shall have no obligation to make any claim under its insurance policies. Buyer shall pursue available claims under its insurance policies to offset Losses to the extent commercially reasonable, but in no event shall Buyer be required to initiate or prosecute any litigation with respect to any such claims.
(c) In calculating any Losses hereunder there shall be deducted any indemnification, contribution or other similar payment actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements any Affiliate thereof from any third Person with respect thereto. Any such amounts or benefits received by an Indemnified Party or any Affiliate thereof with respect to any indemnity claim after it has received an indemnity payment hereunder shall be promptly paid over to the Indemnitor, after deduction for all costs and expenses incurred in obtaining such Losses less amounts or benefits; provided, that the Indemnified Party shall not be obligated to pay over any such amount or benefit in excess of the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In paid by the event that an insurance or other recovery is made by any Indemnitor to the Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyclaim.
(d) In no event Except in the case of fraud and for remedies that cannot be waived as a matter of Law and injunctive and provisional relief, if the Closing occurs, this Section 9 (and Section 6.2 with respect to the matters covered therein) shall be the sole and exclusive remedy for breaches of this Agreement or of any Indemnifying Party be liable to any Indemnified Party for any punitive Company Transaction Agreement or treble damagesSeller Transaction Agreement or Buyer Transaction Agreement, other than indemnification for amounts paid or payable to third parties otherwise in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredthe Transactions.
(e) Each Indemnified Party Notwithstanding anything herein to the contrary, no Seller shall take, and cause have any liability under this Agreement for any Losses to the extent that such Losses relate to actions taken or omitted to be taken by Buyer or any of its Affiliates with the respect to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderthe Company after the Closing Date.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Sra International Inc)
Limitations. (a) Subject Notwithstanding the above, the parties hereby agree to the additional following limitations set forth below in on the obligations of the Company under this Section 7.5, Seller shall not be liable Article XII:
(i) With respect to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect Losses arising as a result of a breach of Section 4.14, Section 12.1(d) or inaccuracy in any Fundamental Representations or any Section 12.8, the Company shall be responsible for all liability and costs for the entire duration of the representations and warranties contained Claims Period set forth in Section 3.512.4(b) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Partieslimitations set forth in Section 12.5(a)(ii), as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”iv) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, and (v) shall be entitled to bring a claim for only those Losses in excess of the Deductiblenot apply.
(bii) Notwithstanding anything No reimbursement for Purchaser Losses asserted under Section 12.1 shall be required unless the aggregate amount of Purchaser Losses exceeds One Hundred Thousand Dollars ($100,000.00), and in such event, indemnification shall be made by the Company only to the contrary contained in this Agreement, (i) extent the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationsaid threshold amount.
(ciii) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss Purchaser Losses shall be reduced by (1) the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements proceeds paid to Purchaser with respect to such Losses less the amount of loss; and (2) any costs of obtaining such recoveryindemnity, including any resulting increase in premium contribution, or other costs of insurance. In the event that an insurance or other recovery is similar payment made to Purchaser by any Indemnified Party third party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyloss.
(div) In no event shall the Company's aggregate liability to the Purchaser under this Agreement for Purchaser Losses, including without limitation, any Indemnifying Party be liable breaches of representations or warranties, covenants or agreements, whether pursuant to any Indemnified Party for any punitive this Article XII, or treble damagesotherwise, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredexceed Three Hundred Thousand Dollars ($300,000.00).
(ev) Each Indemnified Party Notwithstanding the foregoing, the parties hereby specifically agree that in addition to the limitations provided above, in the event the Purchaser makes a claim for Purchaser Losses hereunder, the parties agree that after the threshold amount in Subsection (a)(ii) above is met, the Company and Purchaser shall takeshare, on an equal basis (50/50), any and cause its Affiliates to takeall Purchaser Losses until such time that the limitation in Subsection (a)(iv) above is satisfied for the Company. Thereafter, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected tothe Company shall have no liability under Article XII, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderexcept for the Surviving Representations described in Section 12.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 1 contract
Samples: Asset Purchase Agreement (North American Galvanizing & Coatings Inc)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreementherein (other than Section 8.5(e)), (i) the maximum aggregate liability of Seller or Purchaser the Indemnifying Securityholders for Damages under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationEscrow Amount and shall be solely payable out of the Escrow Fund (as increased by any net profit from, or interest or income produced by, Permitted Investments in the Escrow Fund) pursuant to the terms of the Escrow Agreement, (ii) except for Damages arising out of Sections 3.2, 3.4(a), 3.14, 3.19, 8.1(b) or 8.1(c) which shall be recoverable without regard to the Deductible and shall be taken into account for purposes of calculating the Deductible, the Indemnifying Securityholders shall be liable for only that portion of the aggregate Damages under this Article VIII for which they or it would otherwise be liable which exceeds $400,000 (the "Deductible") and (iii) the liability of each Indemnifying Securityholder for Damages under this Article VIII shall be limited to his, her or its interest in the Escrow Fund as determined pursuant to Section 2.1(d), provided that nothing herein shall limit the right of the Buyer to recover from the Escrow Fund the full amount of any Damages (to the extent of the Escrow Fund) that are covered by the indemnification under Section 8.1. For purposes of this Article VIII, all representations and warranties of the Company in Article III (other than Section 3.6) and the Buyer and Transitory Subsidiary in Article IV shall be construed as if the term "material" and any reference to "Company Material Adverse Effect" or "Buyer Material Adverse Effect" and variations thereof were omitted from such representations and warranties.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(db) In no event shall any Indemnifying Party be responsible or liable to for any Damages or other amounts under this Article VIII (i) that constitute direct claims by any Indemnified Parties for punitive damages (for the sake of clarity, Indemnified Parties may recover damages actually payable by such Indemnified Party for under a third party claim); (ii) that constitute consequential, incidental or special damages (collectively, "Special Damages") (A) unless (x) such Special Damages were reasonably foreseeable and proximately caused by the events and circumstances giving rise to the Special Damages and (y) the Indemnified Parties used their reasonable best efforts to mitigate any punitive such Special Damages, or treble damages, (B) to the extent the Special Damages are based on any loss of value of the Company and its Subsidiaries (including through the use of a multiple of any financial measure) other than indemnification lost profits; or (iii) for amounts paid or Taxes payable to third parties in respect by an Indemnified Party as a result of any Third indemnification payment under this Agreement being treated by the relevant Tax authority as income. Each Party Claim shall (and shall cause its Affiliates to) use commercially reasonable efforts to pursue all legal rights and remedies available in order to minimize the Damages for which indemnification is provided to it under this Article VIII.
(c) The amount of Damages recoverable by an Indemnified Party under this Article VIII with respect to an indemnity claim shall be reduced by (i) the amount of any payment received by such Indemnified Party (or an Affiliate thereof), with respect to the Damages to which such indemnity claim relates, from any insurance policy of the Company and (ii) the amount of any Tax savings that the Indemnified Party actually realizes with respect to such Damages or Taxes; provided, however, that any Tax savings resulting from such a claim shall be determined only after applying all other deductions and losses, including any net operating loss carryforwards, available to the Indemnified Party, as if the Tax savings arising from such claim did not exist (for example, all existing net operating loss carryforwards available for use during the applicable fiscal year would have to be exhausted before a "Tax savings" would be actually realized from such a claim) and provided further that creating or increasing a net operating loss carryforward shall be deemed not to create a Tax savings. The amount of any indemnity payment hereunder is shall initially be made without respect to any such Tax savings or insurance proceeds and shall be subject to adjustment if and when any such Tax savings are actually realized or insurance proceeds are received. An Indemnified Party shall use reasonable commercial efforts to pursue, and to cause its Affiliates to pursue, all insurance claims and Tax benefits to which it may be entitled in connection with any Damages it incurs, and the Parties shall cooperate with each other in pursuing insurance claims with respect to any Damages or any indemnification obligations with respect to Damages; provided, however, the parties hereby agree that the Indemnified Party shall not be required to file a lawsuit to pursue such insurance claim or Tax benefit. If an Indemnified Party (or an Affiliate) receives any insurance payment from any insurance policy of the Company in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within thirty (30) days of receiving such insurance payment, an amount equal to the excess of (A) the amount previously received by the Indemnified Party under this Article VIII from the Indemnifying Party with respect to such claim plus the amount of the insurance payments received, over (B) the amount of Damages with respect to such claim which the Indemnified Party has become entitled to receive under this Article VIII from the Indemnifying Party.
(d) Except with respect to claims for equitable relief, including specific performance, made with respect to breaches of any covenant or agreement contained in this Agreement, and except as specified in Section 8.5(e), the rights of the Indemnified Parties under this Article VIII shall be the sole and exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims under, or otherwise requiredrelating to the transactions that are the subject of, this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its successors or permitted assigns be entitled to claim or seek rescission of the transactions consummated by this Agreement.
(e) Each Indemnified Party shall takeNotwithstanding anything to the contrary in this Article VIII with respect to any Indemnifying Securityholder, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs Damages arising from fraud of such mitigation Indemnifying Securityholder shall survive the periods set forth in Section 8.4 and shall not be Losses indemnified hereundersubject to the limitations on liability set forth in this Section 8.5.
(f) All Losses indemnified pursuant For purposes of this Article VIII, (i) if the Indemnifying Securityholders comprise the Indemnifying Party, any references to this Agreement the Indemnifying Party (except provisions relating to an obligation to make any payments) shall be net of deemed to refer to the proceeds of Stockholder Representative, and (ii) if the Indemnifying Securityholders comprise the Indemnified Party, any third-party insurance coverage actually received by references to the Indemnified Party (except provisions relating to an obligation to make or a right to receive any payments) shall be deemed to refer to the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Stockholder Representative.
Appears in 1 contract
Samples: Merger Agreement (Bright Horizons Family Solutions Inc)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, the following limitations shall apply to indemnification Claims under this Agreement arising out of breaches of representations and warranties:
(i) the maximum aggregate liability of Seller or Purchaser no Party may make any Claim for indemnification under this Article VII for Losses indemnified under Section 7.2(aVI unless and until the aggregate indemnifiable Damages paid, incurred or resulting from such otherwise indemnifiable matter exceed Fifty Thousand Dollars ($50,000) or Section 7.3(ain the aggregate (the “Indemnification Threshold”) (other than at which time Claims may be made and indemnifiable Damages will be determined for amounts only in respect of a breach of or inaccuracy in any Fundamental Representations or any excess of the representations and warranties contained in Section 3.5Indemnification Threshold), as applicable, shall not exceed 20% of the Aggregate Consideration and ;
(ii) the maximum aggregate liability of Seller or Purchaser the Sellers for Losses indemnified all Damages under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII VI shall not exceed the Aggregate ConsiderationPurchase Price; and
(iii) the aggregate liability of the Buyer for all Damages under this Article VI shall not exceed the Purchase Price. For the avoidance of doubt, it is understood and agreed by the Parties that the limitations set forth in clauses (i), (ii) and (iii) of this Section 6.5(a) shall not be applicable to Claims for indemnification by an Indemnified Buyer Party under Section 6.1(b), (c) or (d) or by an Indemnified Seller Party under Section 6.2(b) or (c).
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(db) In no event shall any Indemnifying Party be responsible or liable to any Indemnified Party for any Damages or other amounts under this Article VI that are consequential, special or punitive or treble damages, other than otherwise not actual damages or that are in the nature of lost profits. Each Party shall (and shall cause its Affiliates to) use commercially reasonable efforts to mitigate and minimize the Damages incurred or sustained as a result of breaches of or inaccuracies in representations or warranties or breaches of covenants or agreements.
(c) To the extent that Buyer shall be entitled to indemnification for amounts paid or payable to third parties in respect of any Third inaccuracy in any representation or warranty of the Sellers, the Buyer shall be entitled to such indemnification notwithstanding that the Buyer (i) has actual knowledge on the date of this Agreement that such representation or warranty is inaccurate as of the date of this Agreement or (ii) has actual knowledge as of the Closing Date that such representation or warranty is inaccurate as of the Closing Date.
(d) The amount of Damages recoverable by an Indemnified Party Claim for under this Article VI with respect to an indemnity claim shall be reduced by eighty percent (80%) of the amount of any payment received by such Indemnified Party (or an Affiliate thereof), with respect to the Damages to which such indemnity claim relates, from an insurance carrier. An Indemnified Party shall use commercially reasonable efforts to pursue, and to cause its Affiliates to pursue, all insurance claims to which it may be entitled in connection with any Damages it incurs, and the Parties shall cooperate with each other in pursuing insurance claims with respect to any Damages or any indemnification hereunder is otherwise requiredobligations with respect to Damages.
(e) Each Notwithstanding any other provision of Article I and Article VI, as between the Sellers and the Buyer, with respect to all Damages arising from or related to third-party claims relating to the Consigned Inventory (the “Consigned Inventory Damages”), the Indemnified Party Buyer Parties collectively shall takebe responsible for fifty percent (50%) of such Consigned Inventory Damages (the “Buyer Share”) and the Indemnified Seller Parties collectively shall be responsible for fifty percent (50%) of such Consigned Inventory Damages (the “Sellers Share”). To the extent that the Indemnified Buyer Parties collectively have paid more than fifty percent (50%) of such Consigned Inventory Damages (the amount by which such payments exceed the Buyer Share, the “Excess Buyer Amount”), the Sellers shall pay the Excess Buyer Amount to the Buyer, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance the extent that would be reasonably expected to, or does, give rise thereto, provided that any costs the Indemnified Seller Parties collectively have paid more than fifty percent (50%) of such mitigation Consigned Inventory Damages (the amount by which such payments exceed the Sellers Share, the “Excess Seller Amount”), the Buyer shall pay the Excess Seller Amount to the Sellers. Any amounts due from the Seller to the Buyer or form the Buyer to the Sellers pursuant to this Section 6.5(e) shall be Losses indemnified hereunderpaid promptly upon written notice and delivery of documentation reasonably evidencing the payment of such amounts.
(f) All Losses indemnified Except with respect to Claims for non-monetary equitable relief (including specific performance), fraud or willful breach, and the rights and obligations pursuant to Section 1.5(b) hereof, the rights of the Indemnified Parties under this Agreement Article VI shall be net the sole and exclusive remedies of the proceeds Indemnified Parties and their respective Affiliates with respect to Claims covered by Section 6.1 or Section 6.2 or otherwise relating to the transactions that are the subject of this Agreement.
(g) In no event shall any third-party insurance coverage actually received by the Indemnified Party (be entitled to be indemnified for, or otherwise recover, any Damages in excess of the actual amount of such proceeds determined net Damages, and in no event shall any Indemnified Party be entitled to double or multiple recovery for items that constitute both an Buyer Liability or Excluded Liability, on the one hand, and a breach of all costs inaccuracy in any representation or warranty or a breach of recovery thereofcovenant or agreement, deductibles or retentions thereunder and increases in premiums as a result thereof)on the other hand.
Appears in 1 contract
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller No indemnity shall not be liable payable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a10.2(a) and Purchaser shall not be liable with respect to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a any claim resulting from any breach of or inaccuracy in of any Fundamental Representations representation or any of the representations and warranties contained in Section 3.5) warranty, unless and until the Purchaser Indemnified Parties or the Seller Indemnified Partiesaggregate of all Losses due from Newpark, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration DFI and/or Newpark Texas exceeds $1,500,000 (the “Deductible”) in the aggregate), in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those event all Losses so due in excess of the Deductible.
(b) Deductible shall be paid in the aggregate by Newpark, DXX xxx/xx Xxxxxxx Xxxxx; provided, that the aggregate amount payable by Newpark, DFI and Newpark Texas for all claims arising under this Agreement shall not exceed 33% of the Initial Closing Consideration. Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5)neither Newpark, as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss DFI nor Newpark Texas shall be reduced by the amount of required to indemnify any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Purchaser Indemnified Party with respect to any Loss for which (or series of related Losses) incurred by or asserted by reason of any breach of any representation or warranty contained in this Agreement if the Loss (or series of related Losses) from such Person has been indemnified hereunderbreach is less than (i) $75,000, then a refund equal to if such Loss is incurred before such time as the aggregate amount of all Losses due from Newpark exceeds the recovery Deductible, and (ii) $50,000 if such Loss is incurred after such time as the aggregate amount of all Losses due from Newpark exceeds the Deductible (the “Minimum Claim Amount”), nor shall any Losses less than the Minimum Claim Amount be promptly made included for purposes of calculating whether the Deductible has been exceeded. The limitations set forth in this Section 10.5(a) shall not apply with respect to (i) any amounts payable under Section 2.4, Section 2.5 or Losses arising under Section 10.2(b), Section 10.2(c), or Section 10.2(d) (except as otherwise indicated in Section 10.2(d) of the applicable Indemnifying PartyNewpark Disclosure Schedule), (ii) any breach of Section 5.12, and/or (iii) any acts of willful misconduct or fraud.
(db) In no event No indemnity shall any Indemnifying Party be liable payable to the Newpark Indemnified Parties under Section 10.3(a) with respect to any Indemnified Party for claim resulting from any punitive breach or treble damages, other than indemnification for amounts paid or payable to third parties in respect inaccuracy of any Third Party Claim for representation or warranty, unless and until the aggregate of all Losses due from Purchaser and Trinity exceeds the Deductible, in which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, event all commercially reasonable steps to mitigate any Loss upon becoming aware Losses so due in excess of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation the Deductible shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to paid in full by Purchaser and/or Trinity; provided, that the aggregate amount payable by Purchaser and Trinity for all claims arising under this Agreement shall be net not exceed 33% of the proceeds Initial Closing Consideration. Notwithstanding anything to the contrary contained in this Agreement, neither Purchaser nor Trinity shall be required to indemnify any Newpark Indemnified Party with respect to any Loss (or series of related Losses) incurred by or asserted by reason of any third-party insurance coverage actually received by breach of any representation or warranty contained in this Agreement if the Indemnified Party Loss (or series of related Losses) from such breach is less than the amount Minimum Claim Amount, nor shall any Losses less than the Minimum Claim Amount be included for purposes of such proceeds determined net calculating whether the Deductible has been exceeded. The limitations set forth in this Section 10.5(b) shall not apply with respect to (i) any amounts payable under Section 2.4, Section 2.5 or Losses arising under Section 10.3(b) or Section 10.3(c), and/or (ii) any acts of all costs of recovery thereof, deductibles willful misconduct or retentions thereunder and increases in premiums as a result thereof)fraud.
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (Newpark Resources Inc)
Limitations. (a) Subject to None of the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Buyer Indemnified Parties for shall be entitled to assert any right to indemnification under Section 7.2(a10.2(a) and Purchaser shall not be liable with respect to any breach of representation or warranty of the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations, Specified Representations or any of the representations and warranties contained set forth in Section 3.53.13) unless with respect to a claim or series of related claims if such claim or series of related claims arising out of the same set of facts or circumstances where the Losses related thereto are less than $75,000 (each, a “De Minimis Loss”). The Seller will not have liability pursuant to Section 10.2(a) with respect to any breach of representation or warranty of the Seller (other than any Fundamental Representations, Specified Representations or the representations and warranties set forth in Section 3.13) until the Purchaser aggregate amount of all Losses, not including any De Minimis Losses, incurred by the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% with respect to such matters exceeds one percent (1%) of the Aggregate Consideration Unadjusted Purchase Price (the “Deductible”) in the aggregate), in which case the Purchaser Buyer Indemnified Parties or shall have the Seller Indemnified Parties, as applicable, shall be entitled right to bring a claim seek indemnification for only those all Losses in excess of, but not including, the Deductible (it being understood that any Claim (including any related Claims) for amounts less than the De Minimis Loss shall be ignored in determining whether the Deductible has been exceeded); provided, however, that the limitations set forth in this Section 10.4(a) shall not apply to Losses based on breaches of the DeductibleFundamental Representations, Specified Representations or the representations and warranties set forth in Section 3.13.
(b) Notwithstanding any other provision in this Agreement to the contrary but except for any Fraud on the part of any Seller Indemnified Party, the Seller’s aggregate liability under Section 10.2(a) with respect to any breach of representation or warranty of the Seller (other than any Fundamental Representations, Specified Representations or the representations and warranties set forth in Section 3.13) shall be limited to the amount then remaining in the Indemnity Escrow Fund (the “Indemnity Cap”); provided, however, that the Indemnity Cap shall not apply to Losses based on breaches of the Fundamental Representations, Specified Representations or the representations and warranties set forth in Section 3.13. Except for any Fraud on the part of any Seller Indemnified Party, the aggregate liability of the Seller with respect to indemnifiable Losses pursuant to Section 10.2(a) (including Losses based upon a breach of a Fundamental Representation, Specified Representation and the representations and warranties set forth in Section 3.13), Section 10.2(b), Section 10.2(c) and Section 10.2(d) shall be limited to the amount of the aggregate Purchase Price actually received by the Seller.
(c) No indemnifying Person will be liable for any Losses that are subject to indemnification under Section 10.2 or Section 10.3 unless a written demand for indemnification under this Agreement is delivered by the indemnified Person to the indemnifying Person with respect thereto prior to 5:00 P.M. Central Time on the date pursuant to Section 10.1 on which the survival period of the applicable representations and warranties or covenants expires, to assert a Claim for indemnification describing such Claim in reasonable detail. Notwithstanding the foregoing, any Claim for indemnification under this Agreement that is duly brought prior to such time will survive until such matter is finally resolved.
(d) Notwithstanding anything to the contrary contained in this Agreement, (i) under no circumstances will any Party or any of its Affiliates be entitled to recover more than one time for any Loss under this Agreement, and to the maximum aggregate liability extent a Party or any of Seller its Affiliates is compensated for specific Losses through the adjustments provided for in Section 2.3 or Purchaser otherwise, such Party and its Affiliates will not have a separate right to indemnification for such Losses. Without limiting the generality of the prior sentence, if a set of facts, conditions or events constitutes a breach of more than one representation, warranty, covenant or agreement that is subject to the indemnification obligations under this Article VII 10, as applicable, only one recovery of Losses shall be allowed, and in no event shall there be any indemnification or duplication or recovery of Losses under different provisions of this Agreement, including without limitation, to the extent such Losses are taken into account and actually included in the calculation of the Adjustment Amount; provided that each Buyer Indemnified Party and Seller Indemnified Party may have separate and distinct Losses arising out of any particular set of facts, conditions or events.
(e) Notwithstanding anything in this Article 10 to the contrary and except for any Fraud on the part of any Seller Indemnified Party, recovery against the Indemnity Escrow Fund constitutes the Buyer Indemnified Parties’ sole and exclusive remedy following the Closing for any and all Losses indemnified under Section 7.2(a10.2(a); provided, however, that the limitations set forth in this Section 10.4(e) shall not apply to Losses based on breaches of the Fundamental Representations, the Specified Representations or the representations and warranties set forth in Section 7.3(a) 3.13. For Losses based on breach of any representations and warranties (other than the Fundamental Representations, the Specified Representations and the representations and warranties set forth in respect of Section 3.13) and indemnifiable Losses pursuant to Section 10.2(a) arising thereunder, to the extent a breach of monetary obligation or inaccuracy in payment is due and owing by the Seller to any Fundamental Representations Buyer Indemnified Parties pursuant to this Article 10, the Buyer Indemnified Parties’ sole recourse for payment shall be against the Indemnity Escrow Fund until the Indemnity Escrow Fund is exhausted or any has been fully and finally disbursed. For Losses based on breaches of the representations and warranties contained set forth in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and 3.4(b) (excluding clause (ii) thereof) and indemnifiable Losses pursuant to Section 10.2(a) arising thereunder, to the maximum aggregate liability of extent a monetary obligation or payment is due and owing by the Seller or Purchaser for Losses indemnified under to any Buyer Indemnified Parties pursuant to this Article VII 10, the Buyer Indemnified Parties’ first recourse for payment shall be against the Indemnity Escrow Fund until the Indemnity Escrow Fund is exhausted or has been fully and finally disbursed. For any other indemnifiable Losses pursuant to Section 10.2, to the extent a monetary obligation or payment is due and owing by the Seller to any Buyer Indemnified Parties pursuant to this Article 10, the Buyer Indemnified Parties’ recourse for payment shall first be against Seller; provided, however, to the extent that Buyer Indemnified Parties’ have not asserted or are entitled to any indemnified Losses based on breach of any representations and warranties (other than the Fundamental Representations, the Specified Representations and the representations and warranties set forth in respect of Section 3.13) and indemnifiable Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 10.2(a) arising thereunder after the date fifteen (15) months from the Closing Date, either Party may elect to have any indemnifiable Losses of Buyer Indemnified Parties from Seller or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderIndemnity Escrow Fund.
(f) All Losses indemnified pursuant The right to indemnification or other remedy based on any of the representations, warranties, covenants or agreements in this Agreement shall not be net affected by any investigation or audit conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or agreement; provided, however, that notwithstanding the foregoing or anything else to the contrary contained in this Agreement, neither Party shall be liable under this Article 10 for any Losses based upon or arising out of any inaccuracy in or breach of any of the proceeds representations or warranties of the other Party contained in this Agreement if (i) the other Party had Knowledge of such inaccuracy or breach prior to the Closing and (ii) such other Party had the right to terminate this Agreement pursuant to Section 9.1 as a result of such breach or inaccuracy.
(g) Notwithstanding anything to the contrary in this Agreement, if there has been a breach of any third-party insurance coverage actually received by representations and warranties contained in this Agreement for which any Person is entitled to indemnification under this Article 10, for the Indemnified Party (purposes of determining the breach of any representations and warranties and calculating the amount of any Losses in connection therewith, any dollar, materiality, material adverse effect, Material Adverse Effect or Buyer Material Adverse Effect qualifiers in such proceeds determined net representations or warranties shall be disregarded.
(h) Except as otherwise expressly set forth herein, the Buyer and the Seller hereby waive any and all rights to rescind, reform, cancel, terminate, revoke or void this Agreement or any of all costs the transactions contemplated hereby; provided, however, each Party shall have the right to specific performance and other equitable remedies available at law or equity (including injunctive relief) for the breach or failure of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)the other Party to perform its obligations required to be performed after the Closing.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Noble Midstream Partners LP)
Limitations. (ai) Subject to the additional limitations set forth below in this Section 7.5, Seller The Parent Indemnified Parties shall not be liable entitled to the Purchaser Indemnified Parties for indemnification any payment of any amount under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a10.2(a)(i) (other than for breaches of Fundamental Representations) after such time as the aggregate amount of all Damages incurred by the Parent Indemnified Parties under Section 10.2(a)(i) exceeds the value of the Escrow Shares, valued at the Parent Share Price (such amount, the “Cap”). Except with respect to breaches of Fundamental Representations and breaches of covenants or obligations of the Company, the Escrow Shares held in escrow as contemplated by this Agreement are the sole and exclusive remedy of Parent Indemnified Parties to recover for any indemnifiable Damages under this Agreement, and once all of the Escrow Shares have been distributed out of the Escrow Account in accordance with the terms of the Escrow Agreement, Parent Indemnified Parties shall have no further rights to indemnification hereunder except as provided in Section 10.2(g).
(ii) The Parent Indemnified Parties shall not be entitled to any payment of any amount under Section 10.2(a)(i) (other than for breaches of Fundamental Representations) until such time as the total amount of all Damages that have been directly suffered or incurred by any one or more of the Parent Indemnified Parties in respect of a any breach of representation or inaccuracy in any warranty by the Company (other than breaches of Fundamental Representations or any of the representations and warranties contained in Section 3.5Representations) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Partiesexceeds, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, the Threshold Amount, in which case event the Purchaser Parent Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses indemnification in excess respect of such Damages which exceed the Deductible.
(b) Notwithstanding anything Threshold Amount; subject to the contrary contained in other limitations herein. For purposes of this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration“Threshold Amount” means $1.0 million.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
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Limitations. (a) Subject Prior to Closing, no party shall have any right to indemnification and the additional limitations set forth below in this provisions of Section 7.5, Seller 9.1 shall not be liable to apply and constitute the Purchaser Indemnified Parties for indemnification under Section 7.2(a) sole and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any exclusive remedy of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductibleparties.
(b) Notwithstanding anything Following the Closing, Sellers will have no liability (for indemnification or otherwise) with respect to any representation or warranty, or covenant or obligation to be performed and complied with prior to or on the Closing Date, other than those in Sections 3.3, 3.11 and 3.19, unless on or before sixteen (16) months from the date of Closing, Buyer notifies Sellers of a claim specifying the factual basis of that claim. A claim with respect to Section 3.3, 3.11 and 3.19 may be made at any time prior to the contrary contained in applicable statute of limitations with respect to such matter.
(c) Following the Closing, Buyer will have no liability (for indemnification or otherwise) with respect to any representation or warranty, or covenant or obligation to be performed and to comply with prior to or on the Closing Date, unless on or before the expiration of the applicable statute of limitations, Sellers notify Buyer of claims specifying the factual basis of that claim.
(d) Notwithstanding any other provision of this Agreement, (i) neither Buyer nor Acquisition shall be entitled to indemnification for Damages arising out of matters referred to in Section 11.2 unless and only to the maximum extent that such Damages exceed Seventy-Five Thousand Dollars ($75,000.00); (ii) in no event shall the aggregate liability of Seller or Purchaser under this Article VII Sellers arising out of matters referred to in Section 11.2 exceed Thirty-Five Percent (35%) of the value of the First Merger Consideration, except with respect to Sections 3.3, 3.11 and 3.19, the aggregate liability for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, such section shall not exceed 20% the value of the Aggregate 47 First Merger Consideration (with the shares of Common Stock valued at the IPO price); (iii) in no event shall the aggregate liability of Buyer and Acquisition arising out of matters referred to in Section 11.3(a) exceed the value of the First Merger Consideration received by Sellers in any proceeding in which any claim for Damages is asserted, regardless of the legal theory asserted; (iv) the limitations set forth in subparts (i) and (ii) immediately above shall apply in any proceeding in which any claim for damages is asserted regardless of the maximum aggregate liability legal theory asserted; and (v) the provisions of Seller or Purchaser for Losses indemnified under Section 9.1 and this Article VII Section 11 (other than including Sections 11.1 through 11.7) shall constitute the sole and exclusive remedies of the parties hereto except only in respect circumstances in which any party has a legally-enforceable right to rescind this Agreement and the Contemplated Transactions, which right of Losses indemnified under Section 7.2(c)) or Article VIII rescission shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect remain available to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyparty.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
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Limitations. Notwithstanding anything in this Agreement (including Article VIII) to the contrary:
(a) Subject No amount of Damages shall be payable pursuant to Section 8.2(a)(v) to any Behringer Indemnified Party unless the additional limitations set forth below in this aggregate amount of all Damages that are indemnifiable pursuant to Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a8.2(a)(v) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration exceeds $1,500,000 (the “Behringer Deductible”) in ), after which the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses aggregate amount in excess of the DeductibleBehringer Deductible shall thereafter be recoverable in accordance with the terms hereof. For the avoidance of doubt, it is acknowledged and agreed that the Behringer Deductible shall be calculated in the aggregate with respect to all Indemnity Claims by the Behringer Indemnified Parties, respectively, pursuant to Section 8.2(a)(v) and not separately.
(b) Notwithstanding anything In no event shall the aggregate amount of Damages for which the Behringer Indemnified Parties shall be entitled to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under indemnification pursuant to Section 7.2(a) or Section 7.3(a8.2(a)(v) (other than but excluding, however, Stockholder Claims) exceed $20,000,000. For the avoidance of doubt, it is acknowledged and agreed that such $20,000,000 amount shall be calculated in the aggregate with respect of a breach of or inaccuracy in any Fundamental Representations or any of to all Indemnity Claims by the representations Behringer Indemnified Parties, respectively, pursuant to Section 8.2(a)(v) and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationseparately.
(c) Payments by an Indemnifying Party No amount of Damages shall be payable pursuant to Section 7.2 or Section 7.3 in respect of 8.2(b)(v) to any Loss shall be reduced by the amount of any amounts actually recovered by the REIT I Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to unless the aggregate amount of all Damages that are indemnifiable pursuant to Section 8.2(b)(v) exceeds $150,000 (the recovery “REIT I Deductible”), after which the aggregate amount in excess of the REIT I Deductible shall thereafter be recoverable in accordance with the terms hereof. For the avoidance of doubt, it is acknowledged and agreed that the REIT I Deductible shall be promptly made calculated in the aggregate with respect to all Indemnity Claims by the applicable Indemnifying PartyREIT I Indemnified Parties, respectively, pursuant to Section 8.2(b)(v) and not separately.
(d) In no event shall any Indemnifying Party be responsible and liable to any Indemnified Party for any Damages or other amounts under this Article VIII that are consequential, in the nature of lost profits, diminution in value, damage to reputation or the like, special or punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.not actual Damages..
(e) Each No Behringer Indemnified Party shall take, and cause have any right of contribution against REIT I or any of its Affiliates with respect to take, all commercially reasonable steps to mitigate any Loss upon becoming aware breach by a member of the Behringer Group of any event of its representations, warranties, covenants or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderagreements.
(f) All Losses indemnified pursuant to The amount of any Damages for which indemnification is provided under this Agreement Article VIII shall be net of the proceeds of reduced by any third-party insurance coverage related recoveries actually received recovered by the Indemnified Party under insurance policies of the Indemnifying Party or other related payments actually received from third parties other than, in the case of a Behringer Indemnified Party, another Behringer Indemnified Party, and in the case of a REIT I Indemnified Party, another REIT I Indemnified Party. However, and notwithstanding anything else in this Agreement, it is agreed that under no circumstances shall any Indemnified Party be required to prosecute any claim or seek payment or coverage under any insurance policy of the Indemnified Party. In addition, all Expenses and Damages incurred by the Behringer Indemnified Parties shall be counted toward satisfaction of the Behringer Deductible even if a Behringer Indemnified Party has received (or may receive) payment or reimbursement thereof under any insurance policy maintained by a Behringer Indemnified Party.
(g) Each party agrees that to the amount extent any representation or warranty of any other party made in this Agreement is, to the Knowledge of such proceeds determined net party on or prior to the Closing Date, untrue or incorrect, such party shall have no rights under this Article VIII by reason of all costs such untruth or inaccuracy.
(h) For the avoidance of recovery thereofdoubt, deductibles nothing in this Agreement shall give any Person a right to indemnification under this Agreement with respect to any Damages or retentions thereunder and increases in premiums as a result thereof)Claims to the extent such Damages or Claims arise out of the performance or non-performance of any party under any Ancillary Agreement.
Appears in 1 contract
Samples: Master Modification Agreement (Behringer Harvard Reit I Inc)
Limitations. (a) Except for Fraud claims and claims under Section 6 and Section 7.12, this Section 5 shall be the exclusive means for a Purchaser Indemnified Party to collect any Damages for which such Person is entitled to indemnification under this Agreement or otherwise and under any theory of Liability, and the Company’s aggregate Liability to Purchaser Indemnified Parties shall not exceed $[…***…]; provided, however, that such limitation shall not apply with respect only to the Identified Excluded Liability. Subject to the additional limitations set forth below previous sentence, no current or former stockholder, optionholder, director, officer, employee, Affiliate or advisor of the Company or any Affiliate of the Company shall have any Liability of any nature to any Purchaser Indemnified Party with respect to the breach by the Company of any representation, warranty, covenant or agreement contained in this Section 7.5, Seller shall not be liable Agreement or any other matter relating to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductibletransactions contemplated by this Agreement.
(b) The parties acknowledge that (i) no current or former stockholder, optionholder, director, officer, employee, Affiliate or advisor of the Company has made or is making any representations or warranties whatsoever regarding the Company or the subject matter of this Agreement, express or implied; and (ii) there shall not be any multiple recovery for any Damages.
(c) The Purchaser Indemnified Parties must first pursue the Indemnity Escrow Fund (as reduced from time to time in accordance with the Escrow Agreement) for payment of the Company’s indemnification obligations under this Agreement to the extent of the remaining balance thereof prior to pursuing the Company.
(d) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or no Purchaser under this Article VII for Losses indemnified Indemnified Party shall be entitled to recover any Damages under Section 7.2(a5.1(a)(i)(1) or unless and until the aggregate Damages for which they would otherwise be entitled to indemnification under Section 7.3(a5.1(a)(i) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any exceed $[…***…] of the representations and warranties contained in Section 3.5Closing Consideration (at which point Purchaser Indemnified Parties shall become entitled to be indemnified for such Damages from the first dollar), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Notwithstanding anything to the contrary contained in this Agreement, no Company Indemnified Party shall takebe entitled to recover any Damages under Section 5.1(a)(ii)(1) unless and until the aggregate Damages for which they would otherwise be entitled to indemnification under Section 5.1(a)(ii) exceed $[…***…] of the Closing Consideration (at which point the Company Indemnified Parties shall become entitled to be indemnified for such Damages from the first dollar). If any Indemnified Party receives or becomes entitled to indemnification from an Indemnifying Party, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation the Indemnifying Party shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant entitled to this Agreement exercise and shall be net subrogated to any rights and remedies (including rights of the proceeds indemnity, rights of any third-party insurance coverage actually received by contribution and rights of recovery) that the Indemnified Party (may have against any other Person with respect to 42 34 any Damages, circumstance or matter to which such indemnification payment is directly or indirectly related. The Indemnified Party shall take such actions as the amount Indemnifying Party may reasonably request for the purpose of such proceeds determined net enabling the Indemnifying Party to perfect or exercise all rights of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)subrogation hereunder.
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Limitations. (ac) Subject In the case of a claim with respect to any of the Company Representation Indemnities, each Company Indemnifying Party shall be severally and not jointly liable for such Company Indemnifying Party’s Pro Rata Share of any Damages resulting therefrom up to an amount equal to the additional General Escrow Amount and recovery from the Escrow Fund shall be the sole and exclusive remedy under this Agreement for any such claim for indemnification, except in the case of (i) fraud, willful breach or intentional misrepresentation or (ii) any failure of any of the Specified Representations to be true and correct as set forth in Section 9.2(a). In the case of a claim with respect to any of the Parent Representation Indemnities, the Parent Indemnifying Parties shall be jointly and severally liable for any Damages resulting therefrom up to an amount equal to the General Escrow Amount, except in the case of (A) fraud, willful breach or intentional misrepresentation or (B) any failure of any of the Specified Representations to be true and correct as set forth in Section 9.3(a).
(d) In the case of (i) any failure of any of the Specified Representations to be true and correct as set forth in Section 9.2(a), (ii) any claim for indemnification made pursuant to clauses (b) through (h) of Section 9.2, (iii) any claim for indemnification made pursuant to clause (i) of Section 9.2 arising out of an alleged breach of any Specified Representation or the matters described in clauses (b) through (h) of Section 9.2, and (iv) any claim for indemnification arising out of fraud, willful breach or intentional misrepresentation, each Company Indemnifying Party shall be severally and not jointly liable for such Company Indemnifying Party’s Pro Rata Share of any Damages resulting therefrom up to the aggregate portion of the Final Adjusted Transaction Value received by such Company Indemnifying Party pursuant to Article 2. Any Damages recoverable by the Parent Indemnified Persons (A) pursuant to indemnification claims under this Article 9 (other than with respect to the Special Tax Indemnities) shall be paid first out of the portion of the Escrow Fund constituting the General Escrow Amount and second, if the portion of the Escrow Fund constituting the General Escrow Amount is insufficient to satisfy such Damages in full or if the portion of the Escrow Fund constituting the General Escrow Amount has been released in accordance with the Escrow Agreement, by the Company Indemnifying Parties, subject to the limitations set forth below in this Section 7.5, Seller shall not be liable Article 9 and (B) pursuant to indemnification claims with respect to the Purchaser Indemnified Parties Special Tax Indemnities shall be paid first out of the portion of the Escrow Fund constituting the Tax Escrow Amount, second out of the remaining funds in the Escrow Fund, and third, if the Escrow Fund is insufficient to satisfy such Damages in full or if the Escrow Fund has been released in accordance with the Escrow Agreement, by the Company Indemnifying Parties, subject to the limitations set forth in this Article 9. In the case of (1) any failure of any of the Specified Representations to be true and correct as set forth in Section 9.3(a), and (2) any claim for indemnification under Section 7.2(a) arising out of fraud, willful breach or intentional misrepresentation, the Parent Indemnifying Parties shall be jointly and Purchaser shall not be severally liable for any Damages resulting therefrom up to the Seller Final Adjusted Transaction Value in the aggregate.
(e) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Indemnifying Party (i) who committed fraud or made any intentional misrepresentation in connection with this Agreement or the transactions contemplated hereby or willfully breached this Agreement or (ii) who has actual knowledge of such fraud, intentional misrepresentation or willful breach.
(f) No Parent Indemnified Parties for indemnification under Section 7.3(a) (other than Person may receive any portion of the Escrow Fund in respect of a any claim for indemnification that is made pursuant to the Company Representation Indemnities (in each case except for any claims (i) with respect to any Specified Representations, or (ii) which involve fraud, willful breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) intentional misrepresentation), unless and until Damages in the Purchaser Indemnified Parties aggregate under all claims that have been incurred, paid or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration properly accrued exceed $570,000 (the “DeductibleBasket”) in the aggregate), in which case the Purchaser Parent Indemnified Parties Persons may make claims for indemnification for all Damages, including the amount of the Basket. No Securityholder Indemnified Person may receive any proceeds from Parent in respect of any claim for indemnification that is made pursuant to the Parent Representation Indemnities (in each case except for any claims (x) with respect to any Specified Representations, or (y) which involve fraud, willful breach or intentional misrepresentation), unless and until Damages in the aggregate under all claims that have been incurred, paid or properly accrued exceed the Basket, in which case the Securityholder Indemnified Persons may make claims for indemnification for all Damages, including the amount of the Basket. In determining the amount of any Damages in respect of the failure of any representation or warranty to be true and correct as of any particular date, any materiality or Material Adverse Effect standard contained in such representation or warranty shall be disregarded; provided, however, that this sentence shall not apply in connection with determining the amount of any Damages in respect of the failure of any Specified Representation to be true and correct as of any particular date (and, as a result, any materiality or Material Adverse Effect standards contained in such Specified Representation shall not be disregarded in connection with determining the amount of such Damages).
(g) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 9.2 or Section 9.3, there shall be deducted from any Damages an amount equal to the amount of any proceeds actually received by any Parent Indemnified Person or Securityholder Indemnified Person from any third-party insurer in connection with such Damages (after giving effect to any deductible or increase in premium proximately caused thereby to the extent paid or payable and net of any costs and expenses of recovery or collection thereof); provided, however, that none of the Parent Indemnified Persons, the Securityholder Indemnified Persons or the Seller Representative shall have any obligation to (i) seek recovery against any existing insurance policies (other than insurance policies of the Company that are in existence as of the time of Closing (disregarding any renewal or extension thereof)) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter.
(h) No Parent Indemnified Parties, as applicable, Person or Securityholder Indemnified Person shall be entitled to bring a claim double recovery for only those Losses in excess any adjustments to the Merger Consideration provided for hereunder or for any indemnifiable Damages even though such Damages may have resulted from the breach of more than one of the Deductiblerepresentations, warranties, agreements and covenants in this Agreement.
(bi) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any party be liable to the other for any punitive, speculative or remote damages or any damages that are not the reasonably foreseeable consequence of any breach of or inaccuracy contained in this Agreement, the Company Disclosure Letter or any certificate, document or agreement contemplated by or required to be delivered pursuant to this Agreement (except to the extent such damages are awarded to a third party pursuant to a Third-Party Claim).
(j) No Parent Indemnified Person shall be entitled to indemnification under this Agreement in respect of any Damages to the extent such Damages were taken into account in the calculation of, and reduced the value of (i) the maximum aggregate liability Final Adjusted Transaction Value, including the calculation of Seller the Closing Debt Amount or Purchaser under this Article VII for Losses indemnified under Section 7.2(athe amount of Transaction Fees (including the Closing Employee Payments) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationClosing Working Capital Amount.
(ck) Payments The rights to indemnification set forth in this Agreement based on the representations, warranties, covenants, agreements and obligations set forth herein shall not be affected by an Indemnifying Party pursuant to Section 7.2 any investigation conducted by Parent or Section 7.3 in respect the Company, or any knowledge acquired (or capable of being acquired) at any Loss shall be reduced by time (whether before or after the amount of any amounts actually recovered by Agreement Date or the Indemnified Party under insurance policiesClosing Date), indemnities or other reimbursement arrangements with respect to such Losses less the amount accuracy or inaccuracy of any costs of obtaining such recoveryor compliance with, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunderrepresentation, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partywarranty, covenant, agreement or obligation.
(dl) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third The parties in respect acknowledge the applicability of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps the common law duty to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderDamages.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
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Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller The Buyer Indemnified Parties shall not be liable entitled to the Purchaser Indemnified Parties recover from Shareholder any indemnification (i) for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) any inaccuracy in or other breach of any representation or warranty in this Agreement (other than an inaccuracy in respect of a or other breach of the Special Representations) or inaccuracy in any Fundamental Representations or any of (ii) pursuant to the representations and warranties contained in Section 3.5) Category A Indemnities, unless and until the Purchaser Indemnified Parties total amount of all Damages in respect of such inaccuracies or other breaches in the Seller Indemnified Partiescase of Section 10.3(a)(i) or pursuant to the Category A Indemnities in case of Section 10.3(a)(ii), as applicable, have incurred Losses in excess of 0.5% of exceeds the Aggregate Consideration (the “Deductible”) Threshold Amount in the aggregate, in which case event the Purchaser Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim indemnification only to the extent such Damages exceed the Threshold Amount in the aggregate. The aggregate liability of Shareholder for only those Losses indemnification for the matters described in excess of Sections 10.3(a)(i) and 10.3(a)(ii) shall not exceed the DeductibleAggregate Amount.
(b) Notwithstanding anything The Buyer Indemnified Parties shall not be entitled to recover from Shareholder any indemnification for any inaccuracy or other breach of any representation or warranty in Section 3.17 unless and until the contrary contained in this Agreement, (i) the maximum aggregate liability total amount of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than all Damages in respect of a breach of such inaccuracies or inaccuracy other breaches exceeds $100,000 in any Fundamental Representations or any of the representations and warranties contained aggregate, in Section 3.5), as applicable, which event the Buyer Indemnified Parties shall not be entitled to indemnification only to the extent such Damages exceed 20% of $100,000 in the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationaggregate.
(c) Payments Notwithstanding anything herein to the contrary, the Buyer Indemnified Parties shall not be entitled to recover from Shareholder any Damages suffered or incurred by an Indemnifying Party pursuant them resulting from, arising out of or in connection with any attempt by Buyer or the Company to Section 7.2 collect, realize upon or Section 7.3 otherwise recover any amounts owed in respect of of, or any Loss shall be reduced action by Buyer or the amount of Company to enforce, any Inactive Financing Contract (other than any attempt by Buyer or the Company to collect, realize upon or otherwise recover any amounts actually recovered owed in respect of, or any other action taken by Buyer or the Indemnified Party under insurance policiesCompany to enforce an Inactive Financing Contract that is brought or asserted as a defense, indemnities set off or other reimbursement arrangements with respect counterclaim to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium action or other costs of insurance. In the event that an insurance Claim raised or other recovery is made asserted by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyother Person).
(d) In no event shall calculating any Indemnifying Party be liable amounts payable by any Indemnitor pursuant to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties Section 10.2 in respect of any Third Damages incurred by any Indemnified Party, such Indemnitor shall receive credit for (and the amount of Damages subject to indemnification pursuant to Section 10.2 shall be reduced by) any insurance proceeds actually received by any Indemnified Party Claim for which in respect thereof (and, if any such insurance proceeds are received after payment by the indemnifying party of such indemnification, the indemnified party shall remit such insurance proceeds to the indemnifying party up to the amount of such indemnification hereunder is otherwise requiredpaid by the Indemnitor).
(e) Each Buyer Indemnified Party shall takeentitled to indemnification for any Damages (i) suffered or incurred by such Person resulting from, and cause its Affiliates arising out of, based on or relating to take, all commercially reasonable steps to mitigate any Loss upon becoming aware inaccuracy or other breach of any event or circumstance that would be reasonably expected toSpecial Representation (except as specifically set forth in Section 10.3(a)(ii)), or does, give rise thereto, provided that any costs (ii) pursuant to the Category B Indemnities shall be entitled to such indemnification for the full amount of such mitigation shall be Losses indemnified hereunderDamages regardless of the amount of the Damages.
(f) All Losses indemnified Each Shareholder Indemnified Party entitled to indemnification for any Damages pursuant to this Agreement Section 10.2(b) shall be net entitled to such indemnification for the full amount of the proceeds such Damages regardless of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)the Damages.
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Limitations. (a) Subject Notwithstanding the provisions of this Article 9 or Section 7.5 (but subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable provisions of Sections 9.6(c) and 9.6(d) relating to the Purchaser Indemnified Parties for indemnification under Section 7.2(areduction of the Indemnity Escrow Fund and the proportional reduction of the MDP Stockholder’s obligations hereunder, respectively):
(i) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than except in respect of a breach Fundamental Representations, no Indemnitee shall be entitled to indemnification pursuant to Section 9.2(a) or 9.3(a) (as applicable) for Losses resulting from any single claim that does not exceed $75,000;
(ii) except in respect of Fundamental Representations, no Indemnitee shall be entitled to indemnification pursuant to Section 9.2(a) or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.59.3(a) (as applicable) unless and until the Purchaser Indemnified Parties total of all Losses suffered or incurred by the Indemnitee exceeds an amount equal to $21,062,500, and then only to the extent of such excess;
(iii) in no event shall the aggregate amount to be paid for Losses and Tax Losses incurred by the Stockholder Indemnitees, on the one hand, or the Seller Indemnified PartiesParent Indemnitees and Parent Tax Indemnitees, on the other hand, for which such Indemnitees (including, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration applicable any Parent Tax Indemnitee) is entitled to indemnification under this Agreement exceed $125,000,000 (the “DeductibleCap”), and, for the avoidance of doubt, in no event shall (i) any Other Stockholder’s liability under this Agreement exceed such Other Stockholder’s interest in its Pro Rata Portion of the Indemnity Escrow Amount multiplied by the Cap, or (ii) the MDP Stockholder’s liability under this Agreement exceed the MDP Stockholder’s Pro Rata Portion multiplied by the Cap;
(iv) in no event shall the aggregate, amount to be paid by the MDP Stockholder in which case respect of any claim for indemnification under this Agreement exceed their aggregate MDP Stockholder’s Pro Rata Portion of such claim; and
(v) in no event shall the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall aggregate amount to be entitled to bring paid by any Other Stockholder in respect of a claim for only those Losses in excess indemnification under this Agreement exceed such Other Stockholders’ Pro Rata Portion of the Deductiblesuch claim.
(b) Notwithstanding anything In no event shall any party hereto be liable for, nor shall the definition of Losses and Tax Loss include (other than with respect to amounts actually paid in respect of third party claims), any indirect, incidental, special, consequential, punitive or exemplary damages, including loss of future revenue, income or profits, or loss of business reputation or opportunity (provided that none of the contrary contained foregoing shall include diminution in value), arising out of a breach in this Agreement, (i) even if advised at the maximum aggregate liability time of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any the possibility of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationsuch damages.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of In no event shall the Stockholders be liable under this Agreement for any Loss shall be reduced by or Tax Loss to the amount extent an adequate provision or reserve for such Loss or Tax Loss was established in the Financial Statements (and in the case of any amounts actually recovered by a Tax Loss, specifically identified in the Indemnified Party under insurance policies, indemnities related Tax reserve work papers) or other reimbursement arrangements with respect the matter giving rise to such Losses less Loss or Tax Loss was otherwise addressed in the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyClosing Funds Certificate.
(d) In no event shall any Indemnifying Party the Stockholders be liable to any Indemnified Party for any punitive Loss (i) that was caused by or treble damagesresults directly from any failure by Parent and its affiliates (including, other than following the Closing, the Surviving Corporation and its subsidiaries) to exercise commercially reasonable efforts to mitigate such Loss, or (ii) that is primarily a potential or unrealized Loss or Tax Loss (until such Loss or Tax Loss is realized (subject to the last sentence of Section 9.1)). Without limiting the generality of the foregoing, and notwithstanding anything herein to the contrary, indemnification for amounts paid or payable to third parties in respect breach of any Third Party Claim for which indemnification hereunder is otherwise requiredrepresentation or warranty contained in Section 3.18 shall be limited to Losses incurred with respect to Pre-Closing Tax Periods.
(e) Each Indemnified Party The amount of any Loss or Tax Loss for which indemnification is provided under this Article 9 shall takebe reduced to reflect: (i) any amount received by such Indemnitee (or, as applicable, the Surviving Corporation or any of its subsidiaries) with respect thereto under any insurance coverage (other than self insured or other policies to the extent to which any such policy allocates the cost of any recovery to the Indemnitee or its affiliates (including, as applicable, the Surviving Corporation or any of its subsidiaries)) or from any other person alleged to be responsible therefore, and cause its Affiliates (ii) associated Tax reductions actually realized with respect to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderLosses.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 1 contract
Samples: Merger Agreement (Transunion Corp.)
Limitations. (a) Subject Any indemnification pursuant to Section 5.1 or Section 5.2 shall be paid net of any tax benefit to the additional limitations set forth below in this Section 7.5, Seller shall not be liable Indemnified Party attributable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations relevant payment. It is expressly agreed that no insurer or any of the representations and warranties contained in Section 3.5other third party shall be (i) unless and until the Purchaser Indemnified Parties entitled to a benefit (as a third-party beneficiary or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”otherwise) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall that it would not be entitled to bring a claim for only those Losses receive in excess the absence of Section 5.1 or Section 5.2, (ii) relieved of the Deductibleresponsibility to pay any claims to which it is obligated or (iii) entitled to any subrogation rights with respect to any obligation under Section 5.1 or Section 5.2.
(b) Notwithstanding anything Section 5.1 and Section 5.2 above do not apply to the contrary contained in this Agreement, (i) extent that the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations parties or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate their respective Groups have any written agreement that limits liability of Seller one to the other or Purchaser otherwise provides for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationany separate indemnity.
(c) Payments by an Indemnifying Party pursuant to Notwithstanding Section 7.2 or 5.1 and Section 7.3 in respect of any Loss 5.2, neither party shall be reduced by the amount of liable for any amounts actually recovered by the Indemnified Party under insurance policiesspecial, indemnities indirect, incidental or other reimbursement arrangements with respect consequential damages relating to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount claims of the recovery shall be promptly made to the applicable Indemnifying Partyother party or any third party.
(d) In no event shall The amount that any Indemnifying Party is or may be liable required to pay any Indemnified Party for hereunder shall be reduced (retroactively or prospectively) by any punitive insurance proceeds, settlement recoveries or treble damages, other than indemnification for amounts paid actually recovered by or payable to third parties on behalf of such Indemnified Party in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
pursuant to Section 5.1 or 5.2, as the case may be (e) Each an “Actual Recovery”). If an Indemnified Party shall takehave received the payment required by this Agreement from an Indemnifying Party in respect of any indemnification pursuant to Section 5.1 or 5.2, as the case may be, and cause its Affiliates shall subsequently receive an Actual Recovery, then such Indemnified Party shall pay to take, all commercially reasonable steps such Indemnifying Party a sum equal to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs the amount of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified Actual Recovery up to the aggregate payments made by such Indemnifying Party pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount in respect of such proceeds determined net of all costs of recovery thereofindemnification pursuant to Section 5.1 or 5.2, deductibles or retentions thereunder and increases in premiums as a result thereof)the case may be.
Appears in 1 contract
Samples: Corporate Agreement (Constar Inc)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5No Indemnifying Party shall have any liability under Sections 9.2(a), Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a9.2(b), 9.3(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(aor 9.3(a) (other than in with respect of a breach of or inaccuracy in any Fundamental Representations or any to Losses resulting from breaches of the representations and warranties contained set forth in Section 3.5the Excluded Representations) unless and until the Purchaser Indemnified Parties or aggregate amount of Losses incurred by the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration indemnified parties thereunder exceeds Four Hundred Thousand Dollars ($400,000) (the “Deductible”) in the aggregateand, in which case such event, the Purchaser Indemnified Parties indemnifying party or parties shall only be required to pay the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those amount of all such Losses in excess of the Deductible. In addition, all Losses (i) that an Acquiror Indemnified Party has the right to assert against the Shareholders and (ii) that a Shareholder Indemnified Party has the right to assert against the Acquiror and Acquiror Sub under Sections 9.2(a), 9.2(b), 9.3(a) or 9.3(a), respectively (other than with respect to Excluded Representations), may not, in either case, exceed Seven Million Dollars ($7,000,000) in the aggregate. Notwithstanding anything in this Article IX or elsewhere in this Agreement to the contrary, no Shareholder shall have liability under this Article IX in excess of the amount of Merger Consideration received by such Shareholder hereunder, and the Acquiror shall have no liability under this Article IX to any single Shareholder (or his, her or its Affiliates) in excess of the amount of the Merger Consideration received by such Shareholder.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability For all purposes of Seller or Purchaser under this Article VII for IX, Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount net of any amounts actually recovered by the Indemnified Party Claimant under any insurance policiespolicies in effect prior to or after the Closing in connection with the facts giving rise to the right of indemnification (net of any deductible amounts and any other costs or expenses incurred in connection therewith, indemnities including, without limitation, retrospective and prospective premium adjustments and experience-based premium adjustments directly attributable to a claim for which indemnification is provided under this Article IX).
(c) The Shareholders shall have no right of contribution or other reimbursement arrangements with respect to such Losses less recourse against the amount of Company or its employees, directors, Affiliates, agents, attorneys, representatives, assigns or successors for any costs of obtaining such recoveryIndemnifiable Claims asserted by the Acquiror, including any resulting increase in premium or other costs of insurance. In Acquiror Sub their respective officers, directors, employees, agents and Affiliates, and the event Shareholders further acknowledge and agree that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount covenants and agreements of the recovery shall be promptly made to Company are solely for the applicable Indemnifying Partybenefit of such parties.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts Any amount paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation under this Article IX shall be Losses indemnified hereundertreated as an adjustment to the Merger Consideration.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 1 contract
Limitations. Subject to the provisions set forth in Subsections 11.3.1 and 11.3.2 above, the amount payable by the Sellers to the Purchaser pursuant Section 11.1 shall also be subject to the following limitations:
(a) Subject in the case of any Tax assessment that only results in the shifting of the Tax burden from one fiscal year to another or in the shifting of the Tax burden from one or more taxing jurisdictions to another one or more taxing jurisdictions, any indemnification relating thereto shall be limited to the additional limitations set forth below actual net and final cash cost thereof to Robuschi or the Subsidiaries;
(b) any indemnification due by the Sellers according to this Agreement shall be computed without regard to any multiple, price-earnings or equivalent ratio implicit in this Section 7.5, Seller shall not be liable to the negotiation and/or settlement of the Price;
(c) in the case the Sellers have indemnified the Purchaser Indemnified Parties for indemnification under Section 7.2(aa damage, cost, loss, expense or liability suffered or incurred by any of Robuschi or the Subsidiaries the correspondent damage suffered by the Purchaser or by its controlling company because of the diminished value of the participation will not constitute a loss to be indemnified;
(d) and Purchaser shall not be liable to in the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of event that the same circumstance constitutes a breach of or inaccuracy different representations and warranties, such circumstance will only be deemed as a breach of the representation and/or warranty which is more relevant to it;
(e) in any Fundamental Representations or no event there will be a duplication of indemnification with respect to a breach of any of the representations and warranties contained made in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything this Agreement. Anything to the contrary contained in this AgreementAgreement notwithstanding, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified the Sellers under Section 7.2(a11.1 shall be, subject to the provisions of Sections 11.2, 11.3 and 11.4, limited to any direct damage (“danno emergente”) incurred or suffered by the Company or (without duplication) by the Subsidiaries or by the Purchaser. The Sellers will not indemnify any indirect loss, loss of profits (“lucro cessante”) or Section 7.3(a) (punitive damages whatsoever, nor they will indemnify any other than in respect of a breach damage to Purchaser arising out of or inaccuracy in any Fundamental Representations connected to the actual or any alleged loss of value of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% Robuschi Interest or of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller Group based on any profitability multiple or Purchaser for Losses indemnified under this Article VII (on any other than in respect of Losses indemnified under Section 7.2(c)) different valuation method, directly or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced indirectly, taken into account by the amount Purchaser or by its shareholders for the purpose of any amounts actually recovered by determining the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount value of the recovery shall be promptly made to Robuschi Interest or the applicable Indemnifying PartyGroup.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 1 contract
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, In no event shall Seller shall not be liable for any Damages pursuant to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.511.02(a) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess aggregate amount of 0.5% of the Aggregate Consideration all such Damages exceeds One Hundred Thousand Dollars (the “Deductible”) in the aggregate$100,000.00), in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim liable for only those Losses all such Damages in excess of One Hundred Thousand Dollars ($100,000.00); provided that Damages shall not be subject to the Deductiblelimitations set forth in this Section 11.03(a) to the extent that such Damages are payable in connection with (i) Seller's breach of Section 8.01; (ii) Seller's failure to pay Buyer amounts due under Sections 4.01(c), 8.09 and 8.10; and (iii) Seller's failure to pay or otherwise satisfy any Excluded Liabilities.
(b) Notwithstanding anything to In no event shall the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under any Damages pursuant to Section 7.2(a) or Section 7.3(a11.02(a) (other than in respect of a breach of Damages due to Seller's failure to pay or inaccuracy in otherwise satisfy any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (iiExcluded Liabilities) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationClosing Payment.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect The amount of any Loss Damages under Sections 11.02(a) and 11.02(b) shall be reduced by the amount of any amounts actually recovered by insurance proceeds paid to the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect relating to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyclaim.
(d) In no event Except with respect to claims based on fraud, after the Closing, the right of the Buyer Indemnified Parties to indemnification under this Article XI shall be the exclusive remedy of the Buyer Indemnified Parties with respect to claims incurred in connection with, arising out of, resulting from or incident to (i) any Indemnifying Party be liable to any Indemnified Party for any punitive inaccuracy or treble damages, other than indemnification for amounts paid or payable to third parties in respect breach of any Third Party Claim for which indemnification hereunder is otherwise required.
covenant, representation, warranty or other agreement of Seller herein, (eii) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net Seller's conduct of the proceeds Business prior to the Closing, including Seller's development, manufacturing, marketing, sale or distribution of the Product prior to the Closing; (iii) the failure of Seller to pay, perform or discharge any third-party insurance coverage actually received by Excluded Liabilities; or (iv) the Indemnified Party (failure of Seller or the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)transactions contemplated herein to comply with the Bulk Sales laws.
Appears in 1 contract
Samples: Asset Purchase Agreement (Women First Healthcare Inc)
Limitations. Notwithstanding anything set forth in this Agreement to the contrary:
(a) Subject to Section 6.4(h) and Section 6.7, (i) the additional limitations Sellers shall not have any liability under this Agreement other than in connection with the right of the Buyer to set-off Damages against amounts due under the Deferred Payments in accordance with Section 6.6 and (ii) except in connection with any breach of a representation or warranty set forth below in this Section 7.52.22, Seller Sellers shall not have any liability in the aggregate in excess of the aggregate amount of Deferred Payments made by the Buyer hereunder.
(b) Buyer Indemnified Parties shall not be liable entitled to recovery under Section 6.2(a) unless the Purchaser amount of Damages suffered or incurred by the Buyer Indemnified Parties for indemnification under Section 7.2(ain connection with breaches of the representations and warranties exceeds $15,000.
(c) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than Except in respect connection with breaches of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties representation or warranty contained in Section 3.52.6, the Buyer Indemnified Parties shall not be entitled to recovery under Section 6.2(a) unless and until the Purchaser aggregate amount of the Damages suffered or incurred by the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregateexceeds $150,000, in which case event the Purchaser Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim recovery for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the full amount of any amounts actually recovered by Damages from the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyfirst dollar.
(d) In no event For purposes of this Section 6, any inaccuracy in or breach of any representation or warranty shall any Indemnifying Party be liable determined without regard to any Indemnified Party for any punitive materiality or treble damages, other than indemnification for amounts paid similar qualification contained in or payable otherwise applicable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredsuch representation or warranty.
(e) Each Indemnified Party All Damages recoverable by the Buyer as a right of the Buyer to set-off against amounts due under the Deferred Payments in accordance with Section 6.6 shall takebe net of any proceeds the Buyer actually recovers under any available insurance less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and cause its Affiliates to takeany related increases in insurance premiums. Following the Closing, all the Buyer and the Company Parties shall use commercially reasonable steps efforts to mitigate claim any Loss upon becoming aware damages or losses under any insurance policies maintained by or for the benefit of any event the Buyer or circumstance that would be reasonably expected to, the Company Parties or does, give rise thereto, provided that any costs otherwise covering the business of the Company Parties if and to the extent they are seeking indemnification for such mitigation shall be Losses indemnified damages or losses hereunder.
(f) Notwithstanding any other provision in this Agreement to the contrary, except in connection with Third Party Claims, the Buyer shall not be entitled to a right of set-off against amounts due under the Deferred Payments in accordance with Section 6.6 for any for damage to reputation, lost business opportunities, lost profits, mental or emotional distress, incidental, special, consequential, exemplary, punitive, or indirect damages, interference with business operations or diminution in value of the business or the Units (but not diminution in value of any particular asset of the business).
(g) All Losses indemnified amounts recovered by the Buyer as a right of set-off against amounts due under the Deferred Payments in accordance with Section 6.6 shall be treated by the Parties as an adjustment to the Purchase Price.
(h) Notwithstanding the foregoing, none of the limitations set forth in this Section 6, whether time-based, monetary or otherwise, including the survival periods set forth in Section 6.1 and the limitations in Section 6.4(a), shall apply to any Damages resulting from the willful misconduct, criminal act or fraud of a Party hereto.
(i) To the extent that a Tax Benefit is actually realized by an Indemnified Party as a result of Damages recovered by such Indemnified Party pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by Section 6.2 or Section 6.3, the Indemnified Party (shall refund to the Indemnifying Party the amount of such proceeds determined Tax Benefit promptly after the Tax Return reflecting such Tax Benefit is filed with the applicable Taxing authority. For purposes of this Section 6.4(i), a “Tax Benefit” means an amount by which the Tax liability of an Indemnified Party is actually reduced by a deduction, reduction of income or entitlement to refund (including through a carry back to a prior taxable period) or credit. This Section 6.4(i) shall not be construed to require any Indemnified Party to (x) amend any Tax Return (y) pay any amount to an Indemnifying Party the payment of which would place the Indemnified Party in a less favorable net after-Tax position than the Indemnified Party would have been in if the Damages subject to indemnification and giving rise to the Tax Benefit had not been incurred and the indemnification payments with respect to such Damages had never been paid, or (z) make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the Indemnifying Party or any other Person. The Indemnifying Party shall, upon the request of all costs of recovery thereofthe Indemnified Party, deductibles repay to the Indemnified Party the amount paid to such Indemnifying Party pursuant to this paragraph (i) (plus any penalties, interest or retentions thereunder and increases other charges imposed by the relevant Taxing authority) in premiums as the event that the Indemnified Party is required to repay a result thereof).related Tax Benefit to such Taxing authority
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Flamel Technologies Sa)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, Sequana shall be entitled to bring a claim for recover under the foregoing indemnification only those Losses pursuant to the Escrow Agreement; provided, however, that, in excess the event of any fraudulent or intentional misrepresentation or any fraudulent or intentional breach of any representation, warranty, covenant or agreement by NemaPharm or any Shareholder, the amount recoverable by Sequana shall not be limited to the amount of the DeductibleEscrow Shares.
(b) Notwithstanding anything The right to the contrary contained in this Agreement, (i) the maximum aggregate liability indemnification of Seller or Purchaser each party under this Article VII for Losses indemnified under shall be subject to the following additional terms: No indemnification shall be payable pursuant to Section 7.2(a) 7.3 after, and all rights to such indemnification shall terminate at the end of, the Escrow Term or Section 7.3(a) two years later, as provided in Subsection 7.1 (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of each, the representations and warranties contained in Section 3.5"Expiration Date"), as applicable, shall except with respect to claims made before the respective Expiration Date but not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationthen resolved.
(c) Payments No person shall have a right to recovery against any other party (or any shareholder, officer, director, employee or agent of a party) after the Effective Time for any misrepresentation or breach of any representation, warranty, covenant or agreement made in this Agreement, or in any certificate, instrument, schedule or document given by an Indemnifying Party a party pursuant to Section 7.2 this Agreement or Section 7.3 the Escrow Agreement other than through the exercise of the indemnification rights set forth in respect of any Loss this Article VII, which shall be reduced by constitute the amount of any amounts actually recovered by sole and exclusive remedy after the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss Closing Date for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyclaim.
(d) In no Notwithstanding the foregoing, in the event of any Deficiency arising under Subsection 7.3(a) above, each Shareholder shall any Indemnifying Party be liable only for a percentage of such Deficiency determined by the ratio that the total number of shares of NemaPharm capital stock (on an as converted basis) held by such Shareholder immediately prior to any Indemnified Party the Closing Date bears to the aggregate number of shares of NemaPharm capital stock held by all Shareholders immediately prior to the Closing Date, and no Shareholder shall be liable for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties amount in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net excess of the proceeds value of any third-party insurance coverage actually received by the Indemnified Party (shares of Sequana Common Stock allocable to him hereunder determined as of the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Closing Date.
Appears in 1 contract
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller Xxxxx shall not be liable required to the Purchaser Indemnified Parties make any indemnification payment pursuant to Section 9.2(a) for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than any inaccuracy in respect of a or breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained set forth in this Agreement (other than those set forth in Sections 2.3, 2.6, 2.9(g), 2.16, and 2.20 which shall not be subject to the limitation set forth in this Section 3.59.3(a)) unless until such time as the total amount of all Damages (including the Damages arising from such inaccuracy or breach and until the Purchaser Indemnified Parties all other Damages arising from any other inaccuracies in or the Seller Indemnified Parties, as applicable, breaches of any representations or warranties) that have been directly or indirectly suffered or incurred Losses in excess of 0.5% by any one or more of the Aggregate Consideration (Indemnitees, or to which any one or more of the “Deductible”) Indemnitees has or have otherwise become subject, exceeds $25,000 in the aggregate. If the total amount of such Damages exceeds $25,000, in which case then the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, Indemnitees shall be entitled to bring a claim be indemnified against and compensated and reimbursed only for only those Losses in excess the portion of the Deductiblesuch Damages exceeding $25,000.
(b) Notwithstanding anything to Following the contrary contained Effective Time, the indemnification provisions of Section 9.2 shall be the sole and exclusive remedies of the Indemnitees for any inaccuracy in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained set forth in Section 3.5)2, as applicableand Section 3, respectively, except that the foregoing limitation shall not exceed 20% of apply to Parent to the Aggregate Consideration and (ii) extent any such breach arises directly or indirectly from any circumstance involving fraud or intentional misrepresentation by Xxxxx or the maximum aggregate liability of Seller Company or Purchaser for Losses indemnified under this Article VII (its Representatives, on the one hand, or by Parent or its Representatives, on the other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationhand.
(c) Payments by an Indemnifying Party The maximum liability of Xxxxx under this Section 9 for inaccuracies in or breaches of the representations and warranties set forth in Section 2 shall be equal to the total amount of the Merger Consideration to which all Company Stockholders were entitled pursuant to Section 7.2 or Section 7.3 in respect 1.5 of any Loss this Agreement except that the foregoing limitation shall be reduced by not apply to the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which extent any such Person has been indemnified hereunder, then a refund equal to breach arises directly or indirectly from any circumstance involving fraud or intentional misrepresentation by Xxxxx or the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyCompany or its Representatives.
(d) In no event The limitations provided for in this Section 9.3 shall any Indemnifying Party not be liable applicable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or Damages which shall become payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums Xxxxx as a result thereof).of the failure of any of the Company Stockholders to repay cash to Parent as a result of a reduction of the Closing Date Net Worth below the Company Baseline Net Worth as provided in Section 1.13(a) hereof
Appears in 1 contract
Samples: Merger Agreement (Micronetics Inc)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(bi) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate Existing Members shall have no liability in respect of Seller or Purchaser under this Article VII for Losses indemnified their indemnification obligations under Section 7.2(a6.3(a)(i) or Section 7.3(a) of this Agreement (other than in with respect of a breach of or inaccuracy in any Fundamental Representations or any to breaches of the representations Fundamental Representations) unless and warranties contained in Section 3.5until the aggregate amount of Damages exceeds $75,000 (the “Basket”), as applicableat which point the Existing Members shall be responsible for the entire amount of such Damages back to the first dollar of Damages (i.e. without giving effect to the Basket) but subject to the other limitations set forth herein, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum Existing Members’ aggregate liability in respect of Seller or Purchaser for Losses indemnified their indemnification obligations under Section 6.3(a)(i) of this Article VII Agreement (other than with respect to breaches of the Fundamental Representations) shall not exceed twenty percent (20%) of the Put Right Shares issuable to the Existing Members under the New Company LLC Agreement in respect of Losses indemnified their Preferred Membership Interests and (iii) the Existing Members’ aggregate indemnification obligations under this Agreement (including in respect of breaches of their Fundamental Representations and the other indemnifiable items set forth in Section 7.2(c)6.3(a) or Article VIII of this Agreement) shall not exceed one hundred percent (100%) of the Aggregate ConsiderationPut Right Shares issuable to the Existing Members under the New Company LLC Agreement in respect of their Preferred Membership Interests.
(cii) Payments Except for Indemnified Taxes, which shall be payable by Existing Members in cash, neither the Buyer nor any other Buyer Indemnified Party may seek recovery directly against an Indemnifying Party pursuant to Section 7.2 or Section 7.3 Existing Member in respect of the Existing Members’ indemnification obligations under this Agreement, and any Loss recovery shall be limited to a right of offset against, and to reduce, the number of Put Right Shares to be paid to the Existing Members in respect of their Preferred Membership Interests. For purposes of the preceding sentence only, the Parties agree to value each Put Right Share using the Valuation Methodology in order to determine the reduction in the number of Put Right Shares and the related Put Right obligation. By way of example, assuming each Put Right Share is valued at $5, if the Existing Members’ were liable for Damages in respect of their indemnification obligations under this Agreement in an amount equal to $500,000, then the number of Put Right Shares underlying the Put Right would be reduced by the amount of 100,000 Buyer Shares. Any Indemnified Taxes which are paid in cash shall be applied and credited towards any amounts actually recovered by the indemnification cap.
(iii) If an Indemnified Party is entitled to indemnification under insurance policies, indemnities more than one clause or other reimbursement arrangements sub-clause of this Agreement with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunderDamages, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each such Indemnified Party shall take, and cause its Affiliates be entitled to take, all commercially reasonable steps only one indemnification or recovery for such Damages to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net the extent it arises out of the proceeds same set of any third-party insurance coverage actually received circumstances and events; it being understood that this Section 8.1(f)(iii) is solely to preclude a duplicate recovery by the an Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Party.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Xspand Products Lab, Inc.)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller The VZW Parties shall not be liable for any inaccuracy in or breach of representation and warranty pursuant to Section 8.2(a)(i) unless the Purchaser aggregate amount of all Losses of the Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of all such inaccuracies or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration breaches exceeds $10,000,000 (the “Deductible”) in the aggregate), in which case the Purchaser VZW Parties shall only be liable to the T-Mobile Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible; provided however that the Deductible shall not be applicable with respect to inaccuracies in or breaches of the representations and warranties set forth in Sections 3.6(a), 3.6(g) and 3.6(j). In no event shall the VZW Parties’ aggregate liability under Section 8.2(a)(i) exceed $1.0 billion.
(b) Notwithstanding anything The T-Mobile Parties shall not be liable for any inaccuracy in or breach of representation and warranty pursuant to Section 8.2(a)(i) unless the aggregate amount of all Losses of the Indemnified Parties for all such inaccuracies or breaches exceeds the amount of the Deductible, in which case the T-Mobile Parties shall only be liable to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII VZW Indemnified Parties for Losses indemnified under Section 7.2(a) in excess of the Deductible; provided, however, that the Deductible shall not be applicable with respect to inaccuracies in or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any breaches of the representations and warranties contained set forth in Section 3.5Sections 4.6(a), as applicable, 4.6(g) and 4.6(j). In no event shall not exceed 20% of the Aggregate Consideration and (ii) the maximum T-Mobile Parties’ aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)8.2(a)(i) or Article VIII shall not exceed the Aggregate Consideration$1.0 billion.
(c) Payments Notwithstanding any other provisions of this Agreement, in no event shall any Party be liable for any Losses that are consequential, exemplary or punitive, or otherwise not constituting actual direct Losses, regardless of the theory of recovery, provided that this Section 8.3(c) shall not apply to (i) any intentional or willful misrepresentations or any breaches of covenants or agreements by an Indemnifying Party any Party, or (ii) any damages that are payable to third parties pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policiesa final, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partynon-appealable order.
(d) In no event shall The amount of any Indemnifying Party be liable to any Losses for which an Indemnified Party for any punitive or treble damages, other than claims indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to under this Agreement shall be net of the reduced by: (i) any insurance proceeds of any third-party insurance coverage actually received by the Indemnified Party with respect to such Losses, and (ii) any indemnification or reimbursement payments actually received by the Indemnified Party from third parties (other than insurers) with respect to such Losses.
(e) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to Section 8.2 and the Indemnified Party could have recovered all or a part of such Losses from a third party (a “Potential Contributor”) based on the underlying claim asserted against the Indemnified Party, the Indemnifying Party shall be subrogated to, and the Indemnified Party shall assign to the Indemnifying Party, such of the Indemnified Party’s rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to seek recovery from the Potential Contributor of the amount of such proceeds determined net payment.
(f) Each of all costs the Parties acknowledges and agrees that the licenses it is transferring to the other Party pursuant to this Agreement are unique and that, prior to Closing, remedies at law, including monetary damages, will be inadequate in the event of recovery thereofa breach by it in the performance of its obligations under this Agreement. Accordingly, deductibles the Parties agree that in the event of any such breach, the non-breaching Party shall be entitled to a decree of specific performance pursuant to which the breaching Party is ordered to affirmatively carry out its pre-Closing and Closing obligations under this Agreement, subject to the conditions of this Agreement. The foregoing shall not be deemed to be or retentions thereunder and increases in premiums construed as a result thereof)waiver or election of remedies by the non-breaching Party, and the non-breaching Party expressly reserves any and all rights and remedies available to the non-breaching Party at law or in equity in the event of any breach or default by the breaching Party under this Agreement.
Appears in 1 contract
Limitations. (a) Subject No amount shall be payable to the additional limitations set forth below a Seller Indemnified Party in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties satisfaction of any claim for indemnification under pursuant to Section 7.2(a7.3(a) unless and Purchaser until the aggregate Losses paid, incurred, sustained or accrued (or anticipated to be paid, incurred, sustained or accrued) equal or exceed the Deductible Amount, at which time Buyer shall not be liable to indemnify the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect the amount of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those all Losses in excess of the Deductible.
(bDeductible Amount; provided, that, amounts payable to a Seller Indemnified Party in satisfaction of claims for indemnification pursuant to Sections 7.3(a)(iv) or 7.3(a)(v) shall be paid from the first dollar of Loss. Notwithstanding anything herein to the contrary contained (except in an instance where Section 7.3(a)(v) applies), Buyer shall not have any monetary Liability for Losses arising pursuant to Section 7.3(a)(ii) in excess of the Deposit Amount. Notwithstanding anything in this AgreementSection 7 to the contrary, Buyer’s maximum aggregate liability for amounts payable to Seller Indemnified Parties in satisfaction of claims for indemnification for Losses arising from, based on or relating to any matters set forth (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under in Section 7.2(a7.3(a)(i) or Section 7.3(a7.3(a)(iii) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of shall be limited to the representations and warranties contained in Section 3.5)Indemnification Cap, as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) in Section 7.3(a)(v) shall be limited to the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII Purchase Price (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party excluding any amount paid pursuant to Section 7.2 or 2.2(c)) and (iii) in Section 7.3 in respect of any Loss 7.3(a)(iv) shall have no limitation. Any amounts payable pursuant to the indemnification obligations hereunder shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policiespaid without duplication, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase and in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect indemnified under different provisions of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of for the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)same Loss.
Appears in 1 contract
Samples: Asset Purchase Agreement (RPX Corp)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller Sellers shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) 7.2 unless and until the Purchaser Indemnified Parties have suffered, incurred, sustained or the Seller Indemnified Parties, as applicable, have incurred become subject to Losses in excess of 0.5% of the Aggregate Consideration $125,000 (the “DeductibleBasket”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to may bring a claim for only those all Losses and Sellers shall be required to pay or be liable for all such Losses from the first dollar. No Purchaser shall be liable to the Seller Indemnified Parties for indemnification under Section 7.3 unless and until the Seller Indemnified Parties have suffered, incurred, sustained or become subject to Losses referred to in Section 7.3 in excess of the DeductibleBasket in the aggregate, in which case the Seller Indemnified Parties may bring a claim for all Losses and Purchasers shall be required to pay or be liable for all such Losses from the first dollar. In the event the Indemnifying Party assumes the defense of (or otherwise elects to negotiate or settle or compromise) any action or claim as described above, the Indemnified Party shall reimburse the Indemnifying Party for all costs and expenses incurred by the Indemnifying Party in connection with such defense (or negotiation, settlement or compromise) to the extent that such costs and expenses do not exceed the amount of the remaining Basket.
(b) Notwithstanding anything the foregoing, the limitations set forth in Section 7.4(a) shall not apply to the contrary contained Losses based upon, arising out of any inaccuracy in this Agreement, or breach of (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations Representation or (ii) any of the representations and warranties contained in Section 3.53.5 (Taxes), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 For purposes of this Article VII, any inaccuracy in or Section 7.3 in respect breach of any Loss representation or warranty shall be reduced by the amount of determined without regard to any amounts actually recovered by the Indemnified Party under insurance policiesmateriality, indemnities Business Material Adverse Effect, Purchaser Material Adverse Effect or other reimbursement arrangements with respect similar qualification contained in or otherwise applicable to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium representation or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partywarranty.
(d) Following the determination of any amount that Sellers shall be obligated to indemnify Purchasers or the Purchaser Indemnified Party, as applicable, pursuant to Sections 7.2(a), (b), (c) or (d), or Article VIII, (i) first, Purchaser Representative and Seller Representative shall promptly deliver to Escrow Agent joint written instructions to the Escrow Agent instruction the Escrow Agent to disburse to Purchasers such amount from the Standard Escrow Amount and (ii) next, to the extent such obligation to indemnify exceeds the Standard Escrow Amount and/or the Standard Escrow Amount is otherwise unavailable, Sellers shall, jointly and severally, promptly pay to Purchasers or the Purchaser Indemnified Party, as applicable, any remainder of such excess.
(e) Following the determination of any amount that Sellers shall be obligated to indemnify Purchasers or the Purchaser Indemnified Party, as applicable, pursuant to Section 7.2(e), (i) first, Purchaser Representative and Seller Representative shall promptly deliver to Escrow Agent joint written instructions to the Escrow Agent instruction the Escrow Agent to disburse to Purchasers such amount from the Special Escrow Amount (or, at Purchaser Representative’s sole election, from the Standard Escrow Amount if such Special Escrow Amount is insufficient to cover such obligation to indemnify), and (ii) next, to the extent such obligation to indemnify exceeds the Special Escrow Amount and/or the Special Escrow Amount is otherwise unavailable, Sellers shall, jointly and severally, promptly pay to Purchasers or the Purchaser Indemnified Party, as applicable, any remainder of such excess.
(f) In no event shall any an Indemnifying Party be liable to any the other Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable unless such damages are actually awarded to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requireda Governmental Authority.
(eg) Each Indemnified Party shall takeThe representations, warranties and covenants of the Indemnifying Party, and cause its Affiliates the Indemnified Party’s right to takeindemnification with respect thereto, all commercially reasonable steps to mitigate any Loss upon becoming aware shall not be affected or deemed waived by reason of any event investigation made by or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs on behalf of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (including by any of its Representatives) or by reason of the amount fact that the Indemnified Party or any of its Representatives knew or should have known that any such proceeds determined net representation or warranty is, was or might be inaccurate or by reason of all costs the Indemnified Party’s waiver of recovery thereofany condition set forth in Section 6.2 or 6.3, deductibles or retentions thereunder and increases in premiums as a result thereof)the case may be.
Appears in 1 contract
Samples: Stock Purchase Agreement
Limitations. (ac) Subject In the case of a claim with respect to any of the Company Representation Indemnities, each Company Indemnifying Party shall be severally and not jointly liable for such Company Indemnifying Party’s Pro Rata Share of any Damages resulting therefrom up to an amount equal to the additional Escrow Amount, except in the case of (i) fraud, willful breach or intentional misrepresentation or (ii) any failure of any of the Specified Representations to be true and correct as set forth in Section 9.2(a). In the case of a claim with respect to any of the Parent Representation Indemnities, the Parent Indemnifying Parties shall be jointly and severally liable for any Damages resulting therefrom up to an amount equal to the Escrow Amount, except in the case of (A) fraud, willful breach or intentional misrepresentation or (B) any failure of any of the Specified Representations to be true and correct as set forth in Section 9.3(a).
(d) In the case of (i) any failure of any of the Specified Representations to be true and correct as set forth in Section 9.2(a), (ii) any claim for indemnification, compensation or reimbursement made pursuant to clauses (b) through (f) of Section 9.2, (iii) any claim for indemnification, compensation or reimbursement made pursuant to clause (g) of Section 9.2 arising out of an alleged breach of any Specified Representation or the matters described in clauses (b) through (f) of Section 9.2, and (iv) any claim for indemnification, compensation or reimbursement arising out of fraud, willful breach or intentional misrepresentation, each Company Indemnifying Party shall be severally and not jointly liable for such Company Indemnifying Party’s Pro Rata Share of any Damages resulting therefrom up to the aggregate portion of the Final Adjusted Transaction Value received by such Company Indemnifying Party pursuant to Article 2; provided, however, that, subject to Section 9.4(c): (A) the maximum aggregate monetary liability of any Specified Company Indemnifying Party pursuant to Article 9 shall be limited to such Specified Company Indemnifying Party’s Specified Pro Rata Share of the Escrow Amount and (B) each Company Indemnifying Party (other than the Specified Company Indemnifying Parties) shall be severally and not jointly liable for such Company Indemnifying Party’s Equityholder Pro Rata Share of any such Damages that exceed the Escrow Amount up to the aggregate portion of the Final Adjusted Transaction Value received by such Company Indemnifying Party pursuant to Article 2. So long as any amount remains in the Escrow Fund, the Parent Indemnified Persons shall seek to recover amounts in respect of claims for indemnification, compensation or reimbursement under this Article 9 from the Escrow Fund prior to seeking to recover amounts in respect of such claims for indemnification, compensation or reimbursement under this Article 9 directly from any Company Indemnifying Party; provided, however, that to the extent any amounts are released from the Escrow Fund to any Parent Indemnified Person with respect to claims for indemnification, compensation or reimbursement under this Article 9 that are not subject to the limitations contained in first sentence of Section 9.4(a), such recovered amounts shall not reduce the amount that the Parent Indemnified Persons may recover with respect to claims for indemnification, compensation or reimbursement under this Article 9 that are subject to the limitations contained in the first sentence of Section 9.4(a). Any Damages recoverable by the Parent Indemnified Persons pursuant to claims for indemnification, compensation or reimbursement under this Article 9 shall be paid first out of the remaining funds in the Escrow Fund, and second, if the Escrow Fund is insufficient to satisfy such Damages in full or if the Escrow Fund has been released in accordance with the Escrow Agreement, directly by the Company Indemnifying Parties, subject to the limitations set forth below in this Article 9. In the case of (1) any failure of any of the Specified Representations to be true and correct as set forth in Section 7.59.3(a) or (2) any claim for indemnification, Seller compensation or reimbursement arising out of fraud, willful breach or intentional misrepresentation, the Parent Indemnifying Parties shall not be jointly and severally liable for any Damages resulting therefrom up to the Purchaser Indemnified Parties for indemnification under Section 7.2(aFinal Adjusted Transaction Value in the aggregate.
(e) and Purchaser shall not be liable Notwithstanding anything herein to the Seller contrary, there shall be no maximum liability for any Company Indemnifying Party (i) who committed fraud or made any intentional misrepresentation in connection with this Agreement or the transactions contemplated hereby or willfully breached this Agreement or (ii) who has knowledge of or could reasonably have been expected to have knowledge of such fraud, intentional misrepresentation or willful breach.
(f) No Parent Indemnified Parties for indemnification under Section 7.3(a) (other than Person may receive any portion of the Escrow Fund in respect of a any claim for indemnification, compensation or reimbursement that is made pursuant to the Company Representation Indemnities (in each case except for any claims (i) with respect to any Specified Representations, or (ii) which involve fraud, willful breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) intentional misrepresentation), unless and until Damages in the Purchaser Indemnified Parties aggregate under all claims that have been incurred, paid or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration properly accrued exceed $500,000 (the “DeductibleBasket”) in the aggregate), in which case the Purchaser Parent Indemnified Parties Persons may make claims for indemnification, compensation or reimbursement for all Damages, including the amount of the Basket. No Securityholder Indemnified Person may receive any proceeds from Parent in respect of any claim for indemnification, compensation or reimbursement that is made pursuant to the Parent Representation Indemnities (in each case except for any claims (x) with respect to any Specified Representations, or (y) which involve fraud, willful breach or intentional misrepresentation), unless and until Damages in the aggregate under all claims that have been incurred, paid or properly accrued exceed the Basket, in which case the Securityholder Indemnified Persons may make claims for indemnification, compensation or reimbursement for all Damages, including the amount of the Basket.
(g) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 9.2 or Section 9.3, there shall be deducted from any Damages an amount equal to the amount of any proceeds actually received by any Parent Indemnified Person or Securityholder Indemnified Person from any third-party insurer in connection with such Damages (after giving effect to any deductible or increase in premium proximately caused thereby to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof); provided, however, that none of the Parent Indemnified Persons, the Securityholder Indemnified Persons or the Seller Representative shall have any obligation to (i) seek recovery against any existing insurance policies (other than insurance policies of the Company that are in existence as of the time of Closing (disregarding any renewal or extension thereof)) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter.
(h) No Parent Indemnified Parties, as applicable, Person or Securityholder Indemnified Person shall be entitled to bring a claim double recovery for only those Losses in excess any adjustments to the Merger Consideration provided for hereunder or for any indemnifiable Damages even though such Damages may have resulted from the breach of more than one of the Deductiblerepresentations, warranties, agreements and covenants in this Agreement.
(bi) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any party be liable to the other for any punitive, speculative or remote damages or any damages that are not the reasonably foreseeable consequence of any breach of or inaccuracy contained in this Agreement, the Company Disclosure Letter or any certificate, document or agreement contemplated by, or required to be delivered pursuant to, this Agreement (except to the extent such damages are awarded to a third party pursuant to a Third-Party Claim).
(j) No Parent Indemnified Person shall be entitled to indemnification, compensation or reimbursement under this Agreement in respect of any Damages to the extent such Damages were taken into account in the calculation of, and reduced the value of (i) the maximum aggregate liability Final Adjusted Transaction Value, including the calculation of Seller the Closing Debt Amount or Purchaser under this Article VII for Losses indemnified under Section 7.2(athe amount of Transaction Fees (including the Closing Employee Payments) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationClosing Working Capital Amount.
(ck) Payments The rights to indemnification, compensation or reimbursement set forth in this Agreement based on the representations, warranties, covenants, agreements and obligations set forth herein shall not be affected by an Indemnifying Party pursuant to Section 7.2 any investigation conducted by Parent or Section 7.3 in respect the Company, or any knowledge acquired (or capable of being acquired) at any Loss shall be reduced by time (whether before or after the amount of any amounts actually recovered by Agreement Date or the Indemnified Party under insurance policiesClosing Date), indemnities or other reimbursement arrangements with respect to such Losses less the amount accuracy or inaccuracy of any costs of obtaining such recoveryor compliance with, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunderrepresentation, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partywarranty, covenant, agreement or obligation.
(dl) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third The parties in respect acknowledge the applicability of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps the common law duty to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderDamages.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 1 contract
Limitations. (a) Subject The obligations of the parties pursuant to Section 9 shall be limited to claims made prior to the additional limitations set forth below last date of survival of the applicable representation, warranty or covenant referred to in this Agreement (and the absence of any express survival period shall be construed to mean that such representation, warranty or covenant survives without limit). Without limiting the foregoing, the obligation of the parties pursuant to Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a9.3(b) and Purchaser 9.3(d) shall not survive for a period of one (1) year following the Closing Date, and shall thereafter be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect null and void and of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductibleno further effect.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate The amount of either party's liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(aAgreement shall be determined taking into account (A) or Section 7.3(aany applicable insurance proceeds actually received by the other party, and (B) (any other than savings realized in respect of a breach of or inaccuracy in any Fundamental Representations or any connection with such liability that actually reduce the overall impact of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of Losses upon the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationparty.
(c) Payments by an Indemnifying Party pursuant Notwithstanding anything in this Agreement to Section 7.2 or Section 7.3 in respect of the contrary, CILP and COLP shall have no liability to any Loss shall be reduced by the amount of any amounts actually recovered by the Buyer Indemnified Party under insurance policiesunless the valid claims hereunder collectively aggregate more than $60,000, indemnities or other reimbursement arrangements with respect to such Losses less in which event the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the full amount of such proceeds determined net valid claims shall be actionable, up to the cap described below in this paragraph (c) (except for any claim based on fraud by CILP or COLP in connection with this Agreement, which claim shall not be subject to the limitations of this Section 9.4(c)). Further, (i) any recovery against CILP or COLP hereunder shall be limited to Buyer's actual damages, (ii) the total recovery or recoveries against CILP and/or COLP based upon "Section 9.3(b) Claims" (as hereafter defined) shall not exceed an amount which, when combined with any and all costs other recovery or recoveries from CILP and/or COLP based upon Section 9.3(b) Claims, shall not exceed $572,000.00 in the aggregate, and (iii) the total recovery or recoveries against CILP and/or COLP based upon "Non-Section 9.3(b) Claims" (as hereafter defined) shall not exceed an amount which, when combined with any and all other recovery or recoveries from CILP and/or COLP based upon Non-Section 9.3(b) Claims, shall not exceed $300,000. As used herein, the term "Section 9.3(b) Claims" shall refer to all claims against CILP which can be brought only under Section 9.3(b) of recovery thereofthis Agreement, deductibles and not under any other provision of this Agreement (i.e., claims against CILP which are not, in any way, based upon a breach by CILP or retentions thereunder and increases COLP of any representation or covenant set forth in premiums as this Agreement that is actionable under Section 9.3(a)). As used herein, the term "Non-Section 9.3(b) Claims" shall refer to all claims against CILP or COLP which can be brought under a result thereofprovision of this Agreement other than Section 9.3(b)., whether or not such claim can also be brought under Section 9.3(b). Thus, for purposes of illustration only, a claim by Buyer against CILP or COLP based upon an alleged breach of a representation set forth herein, which representation relates to an action of the Partnership occurring prior to the Closing, would constitute a Non-Section 9.3(b) Claim because, even though such claim could be brought under
Appears in 1 contract
Samples: Purchase and Sale Agreement (Corporate Office Properties Trust)
Limitations. (a) Subject With respect to claims for Losses arising under Section 10.1, the aggregate liability of the Sellers shall not exceed the Purchase Price actually received or entitled to be received by the Sellers.
(b) The aggregate liability of each Seller for Losses under this ARTICLE X which are indemnifiable by all of the Sellers shall not exceed such Seller’s Pro Rata Percentage of such Losses; provided that the limitation set forth in this sentence shall not apply with respect to any Party that perpetrated or participated in, or had actual knowledge of, Fraud.
(c) In calculating amounts payable under this ARTICLE X, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made under this Agreement and shall be computed net of (i) payments actually recovered by Purchaser under any insurance policy insurer, including the R&W Insurance Policy, with respect to such Losses (after giving effect to any deductible or other reasonably incurred and documented out-of-pocket cost of recovery or increase in insurance premiums) and (ii) any other amount actually recovered previously by Purchaser Indemnified Party from any third party with respect to such Losses (after giving effect to any reasonably incurred and documented out-of-pocket cost of recovery). Neither Purchaser nor any of its Affiliates shall have any obligation to pursue any claims under any insurance policies (including the R&W Insurance Policy) or against any other third parties.
(d) No Seller shall have any right of contribution against the Company with respect to any breach by the Company of any of its representations or warranties resulting from Fraud.
(e) Notwithstanding anything to the additional limitations set forth below contrary in this Section 7.5Agreement, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(apurposes of determining (i) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of whether there has been a breach of or inaccuracy in any Fundamental Representations representation or any of warranty set forth in ARTICLE IV or ARTICLE V or the representations and warranties contained certificate described in Section 3.59.2(a) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability amount of Seller or Losses for which any Purchaser for Losses indemnified Indemnified Party may be entitled to indemnification under this Article VII ARTICLE X, each such representation or warranty (other than the representations and warranties set forth in respect clause (b) of Losses indemnified under Section 7.2(c)4.7) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of deemed to have been made without any amounts actually recovered by the Indemnified Party under insurance policies, indemnities qualifications or other reimbursement arrangements with respect limitations as to such Losses less the amount of any costs of obtaining such recovery, materiality (including any resulting increase in premium qualifications or other costs of insurance. In the event that an insurance or other recovery is limitations made by any Indemnified Party with respect reference to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderMaterial Adverse Effect).
(f) All Losses indemnified Except in the case of any tort claim for Fraud and claims for specific performance, after the Closing, the rights of Purchaser under this ARTICLE X shall be the exclusive remedy of Purchaser with respect to claims resulting from or relating to any misrepresentation or breach of warranty contained in this Agreement.
(g) Any payments made to a party pursuant to this Agreement ARTICLE X shall be net of treated as an adjustment to the proceeds of any third-party insurance coverage actually received Purchase Price for Tax purposes to the extent permitted by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Legal Requirements.
Appears in 1 contract
Samples: Stock Purchase Agreement (Progress Software Corp /Ma)
Limitations. (a) Subject Any indemnification pursuant to Section 5.1 or Section 5.2 shall be paid net of any tax benefit to the additional limitations set forth below in this Section 7.5, Seller shall not be liable Indemnified Party attributable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations relevant payment. It is expressly agreed that no insurer or any of the representations and warranties contained in Section 3.5other third party shall be (i) unless and until the Purchaser Indemnified Parties entitled to a benefit (as a third-party beneficiary or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”otherwise) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall that it would not be entitled to bring a claim for only those Losses receive in excess the absence of Section 5.1 or Section 5.2, (ii) relieved of the Deductibleresponsibility to pay any claims to which it is obligated or (iii) entitled to any subrogation rights with respect to any obligation under Section 5.1 or Section 5.2.
(b) Notwithstanding anything to To the contrary contained in this Agreement, (i) extent that the maximum aggregate Ancillary Agreements contain provisions that limit the liability of Seller the parties thereto, contain indemnification provisions, or Purchaser under this Article VII for Losses indemnified under otherwise conflict with Section 7.2(a) 5.1 or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any 5.2 above, the terms of the representations and warranties contained in Section 3.5), as applicable, Ancillary Agreements shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationgovern.
(c) Payments by an Indemnifying Party pursuant to Notwithstanding Section 7.2 5.1 and Section 5.2 or Section 7.3 in respect of any Loss the other provisions hereof, neither party shall be reduced by the amount of liable for any amounts actually recovered by the Indemnified Party under insurance policiesspecial, indemnities indirect, incidental or other reimbursement arrangements with respect consequential damages relating to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount claims of the recovery shall be promptly made to the applicable Indemnifying Partyother party.
(d) In no event shall The amount that any Indemnifying Party is or may be liable required to pay any Indemnified Party for hereunder shall be reduced (retroactively or prospectively) by any punitive insurance proceeds, settlement recoveries or treble damages, other than indemnification for amounts paid actually recovered by or payable to third parties on behalf of such Indemnified Party in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
pursuant to Section 5.1 or 5.2, as the case may be (e) Each an “Actual Recovery”). If an Indemnified Party shall takehave received the payment required by this Agreement from an Indemnifying Party in respect of any indemnification pursuant to Section 5.1 or 5.2, as the case may be, and cause its Affiliates shall subsequently receive an Actual Recovery, then such Indemnified Party shall pay to take, all commercially reasonable steps such Indemnifying Party a sum equal to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs the amount of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified Actual Recovery up to the aggregate payments made by such Indemnifying Party pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount in respect of such proceeds determined net of all costs of recovery thereofindemnification pursuant to Section 5.1 or 5.2, deductibles or retentions thereunder and increases in premiums as a result thereof)the case may be.
Appears in 1 contract
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller No amounts of indemnity shall not be liable to the Purchaser Indemnified Parties for indemnification payable as a result of any claim arising under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than excluding claims thereunder in respect of a any inaccuracy or breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) Representation for which no Deductible shall apply), unless and until the Purchaser Indemnified Parties have suffered, incurred, sustained or the Seller Indemnified Parties, as applicable, have incurred become subject to Losses under Section 7.2(a) in excess of 0.5% of $250,000 in the Aggregate Consideration aggregate (the “Deductible”) in the aggregate), in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to may bring a claim for only those all Losses in excess of such Deductible; provided, that the amount of Losses with respect to such claim exceeds $10,000 (any claim involving Losses equal to or less than such amount being referred to as a “De Minimis Claim”) and that no such De Minimis Claims shall be taken in to account in aggregating Losses under this Agreement to satisfy the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the . The maximum aggregate liability of the Seller or Purchaser under this Article VII for Losses indemnified Parties under Section 7.2(a) (excluding claims thereunder in respect of any inaccuracy or breach of any Fundamental Representation for which no maximum liability amount shall apply) shall not exceed $2,500,000 in the aggregate (the “Indemnity Amount”). No amounts of indemnity shall be payable as a result of any claim arising under Section 7.3(a) (other than excluding claims thereunder in respect of a any inaccuracy or breach of or inaccuracy in any Fundamental Representations Representation, for which no Deductible amount shall apply), unless and until the Seller Indemnified Parties have suffered, incurred, sustained or any become subject to Losses referred to under Section 7.3(a) in excess of the representations and warranties contained Deductible in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than De Minimis Claims), in respect which case the Seller Indemnified Parties may bring a claim for all Losses in excess of Losses indemnified such Deductible and the maximum liability of Purchaser under Section 7.2(c)) or Article VIII 7.3 shall not exceed the Aggregate ConsiderationIndemnity Amount.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Municipal Mortgage & Equity LLC)
Limitations. (a) Subject In the case of a claim with respect to any of the Company Representation Indemnities, each Indemnifying Party shall be severally and not jointly liable for such Indemnifying Party’s Pro Rata Share of any Damages resulting therefrom up to an amount equal to the additional limitations Escrow Amount and recovery from the Escrow Fund shall be the sole and exclusive remedy under this Agreement for any such claim for indemnification, compensation or reimbursement, except in the case of (i) the indemnification provided under Section 9.2(i), or (ii) any failure of any of the Specified Representations to be true and correct as set forth below in this Section 7.59.2(a).
(b) In the case of (i) any failure of any of the Specified Representations to be true and correct as set forth in Section 9.2(a), Seller (ii) any claim for indemnification, compensation or reimbursement made pursuant to clauses (b) through (f), (i) and (j) of Section 9.2 and (iii) any claim for indemnification, compensation or reimbursement made pursuant to clause (h) of Section 9.2 arising out of an alleged breach of any Specified Representation or the matters described in clauses (b) through (f), (i) and (j) of Section 9.2, each Indemnifying Party shall be severally and not jointly liable for such Indemnifying Party’s Pro Rata Share of any Damages resulting therefrom up to an amount equal to (i) the aggregate amount of cash paid to such Indemnifying Party pursuant to Article 2 (including, for the avoidance of doubt, any cash retained by Parent pursuant to the terms of any Management Holder’s Support Agreement), inclusive of contributions to the Escrow Fund, plus (ii) (A) the aggregate number of shares of Parent Common Stock (if any) paid to such Indemnifying Party pursuant to Article 2 (including, for the avoidance of doubt, any shares of Parent Common Stock retained by Parent pursuant to the terms of any Management Holder’s Support Agreement), inclusive of contributions to the Escrow Fund, multiplied by (B) the Average Trading Price). In the case of (1) any claim for indemnification, compensation or reimbursement made pursuant to clause (g) of Section 9.2 and (2) any claim for indemnification, compensation or reimbursement made pursuant to clause (h) of Section 9.2 arising out of an alleged breach of the matters described in clause (g) of Section 9.2, each Indemnifying Party shall be severally and not jointly liable for such Indemnifying Party’s Pro Rata Share of any Damages resulting therefrom up to an amount equal to the amount set forth on Schedule 9.2(g).
(c) Except pursuant to the indemnification provided under Section 9.2(i), no Indemnifying Party shall be liable to the Purchaser any Indemnified Parties Party for indemnification under Section 7.2(a) any fraud, intentional misrepresentation or knowing and Purchaser shall not be liable willful breach by any other Person. Notwithstanding anything herein to the Seller contrary, there shall be no maximum liability for any Indemnifying Party who committed or was complicit in committing fraud or made any intentional misrepresentation in connection with this Agreement or the transactions contemplated by this Agreement or knowingly and willfully breached this Agreement.
(d) Notwithstanding anything to the contrary contained herein, except for any claims of fraud, intentional misrepresentation or knowing and willful breach that are asserted against the Person who allegedly committed such fraud, intentional misrepresentation or knowing and willful breach, the Indemnified Parties Party shall be required to first seek recourse to the Escrow Fund for all indemnifiable Damages prior to seeking further indemnification under Section 7.3(arecourse directly against the Indemnifying Parties. For Damages that are outside of the Escrow Fund (i) from the Closing Date until the date that is 6 months after the Closing Date, each Indemnifying Party shall have the right, at its election, to settle any such Damages for which the Indemnifying Party is responsible in cash or shares of Parent Common Stock received in connection with the Merger (other than which shares shall be valued at the Average Trading Price), and (ii) following the date that is 6 months after the Closing Date, each Indemnifying Party shall be required to settle any such Damages for which the Indemnifying Party is responsible in cash.
(e) No Indemnified Party may receive any portion of the Escrow Fund in respect of a breach of any claim for indemnification, compensation or inaccuracy reimbursement that is made pursuant to the Company Representation Indemnities (in each case except for any Fundamental claims (i) with respect to any Specified Representations or any of the representations (ii) which involve fraud, knowing and warranties contained in Section 3.5) willful breach or intentional misrepresentation), unless and until Damages in the Purchaser Indemnified Parties aggregate under all claims that have been incurred or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration paid exceed $750,000 (the “DeductibleBasket”) in the aggregate), in which case the Purchaser Indemnified Parties may make claims for indemnification, compensation or reimbursement for all Damages, including the amount of the Basket. In determining the amount of any Damages in respect of the failure of any representation or warranty to be true and correct as of any particular date, but not in determining whether a breach of a representation or warranty has occurred, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 9.2, there shall be deducted from any Damages an amount equal to the amount of any proceeds actually received by any Indemnified Party from any third-party insurer or third party contractual indemnification or contribution provisions in connection with such Damages (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof); provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies or to enforce such third party contractual indemnification or contribution provisions, or (ii) obtain insurance coverage or other third party protection with respect to any particular matter; provided, further, that in the event the Indemnified Parties first recover against the Escrow Fund or the Seller Indemnifying Parties directly for any particular Damages and thereafter recover for the same Damages pursuant to any existing insurance policies and/or contractual indemnification or contribution provisions, then the amount recovered pursuant to such existing insurance policies and/or contractual indemnification or contribution provisions (up to the amount first recovered by the Indemnified Parties, as applicable, ) shall promptly be paid to the Indemnifying Parties by Parent.
(g) No Indemnified Party shall be entitled to bring a claim double recovery for only those Losses in excess any adjustments to the Merger Consideration provided for hereunder or for any indemnifiable Damages even though such Damages may have resulted from the breach of more than one of the Deductiblerepresentations, warranties, agreements and covenants in this Agreement. No Indemnified Party shall be entitled to indemnification under this Agreement in respect of any Damages to the extent such Damages were taken into account in the calculation of, and reduced the value of (i) the Final Adjusted Transaction Value, including the calculation of the Closing Debt Amount, the amount of Transaction Fees (including the Closing Employee Payments) and (ii) the Closing Working Capital Amount.
(bh) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in no circumstances will any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party party be liable to any Indemnified Party the other for any punitive punitive, speculative or treble damages, other than indemnification for amounts paid remote damages or payable to third parties in respect any damages that are not the reasonably foreseeable consequence of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall takebreach or inaccuracy contained in this Agreement, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected tothe Company Disclosure Letter, or doesany certificate, give rise thereto, provided that any costs of such mitigation shall document or agreement contemplated by or required to be Losses indemnified hereunder.
(f) All Losses indemnified delivered pursuant to this Agreement (except, in the case of punitive damages, to the extent such punitive damages are awarded to a third party pursuant to a Third-Party Claim).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement based on the representations, warranties, covenants, agreements and obligations set forth herein shall not be net affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, agreement or obligation.
(j) The parties acknowledge the applicability of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)common law duty to mitigate Damages.
Appears in 1 contract
Limitations. (1) Neither the Seller nor any member of the Seller's Group shall be liable under the Indemnity to the extent that Environmental Liabilities have arisen:
(a) Subject due to any act or omission of the Purchaser or any employee, agent, contractor or Affiliate thereof which is outside the normal course of business and which the Purchaser knew or ought reasonably to have known could give rise to a claim under the Indemnity, provided, for the avoidance of doubt and subject to the additional limitations set forth below duty to mitigate in this Section 7.5paragraph 5, that the Purchaser shall not be considered to have made such an omission solely by a non-negligent failure to undertake precautionary investigatory or remediatory work in relation to Environmental Contamination; or
(b) as a result of a change in use of the Site(s) to a use which is more sensitive to Environmental Contamination; or
(c) due to any negligent act or omission of the Purchaser or any employee, agent, contractor or Affiliate thereof.
(2) No claim against the Seller or any member of the Seller's Group under the terms of the Indemnity for any Environmental Liabilities shall be valid unless notice has been served on the Seller in accordance with the provisions of paragraph 7 within 10 years of the Completion Date.
(3) The maximum aggregate liability of the Seller and all members of the Seller's Group in respect of all and any claims under the Indemnity and warranties in paragraph A.6 of Schedule 7 shall not exceed (Pounds)100 million.
(4) The Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of any Environmental Liability to the extent that such Environmental Liability arises:
(a) as a breach result directly or indirectly of information voluntarily given by or inaccuracy in any Fundamental Representations or any on behalf of the representations and warranties contained Purchaser to a regulatory authority in Section 3.5) unless and until the Purchaser Indemnified Parties circumstances other than where there is a mandatory reporting requirement under Environmental Law or where the Seller Indemnified Partieshas previously proposed or approved this course of action in writing, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties such approval not to be unreasonably withheld or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.delayed; and/or
(b) Notwithstanding anything to from any admission of liability by the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall clean-up which needs to be reduced by done, except where the Seller has approved such admission in writing, such approval not to be unreasonably withheld or delayed.
(5) If the Indemnitor (as defined in paragraph 6(1)) makes any payment in respect of any Environmental Liabilities under the Indemnity or Counter Indemnity, as the case may be, (the "Indemnity Payment") and the Claimant (as defined in paragraph 6(1)) receives any benefit otherwise than from the Indemnitor which would not have been received but for the circumstances giving rise to the claim in respect of which the Indemnity Payment was made, the Claimant shall, once it has received such benefit, forthwith repay to the Indemnitor an amount equal to the lower of the amount of any amounts actually recovered by such benefit and the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. Indemnity Payment.
(6) In the event that an insurance the Indemnitor (as defined in paragraph 6(1)) either incurs external charges, costs and expenses for environmental services or other recovery is made by any Indemnified Party internal charges for its own environmental services, in either case including but not limited to testing and/or analytical services and/or contaminated soil disposal facilities, in connection with respect or in relation to any Loss for which any actual or potential Environmental Liabilities under the Indemnity or Counter Indemnity (as appropriate) then such Person has been indemnified hereunderexternal charges, then a refund equal to the aggregate amount of the recovery costs and expenses shall be promptly deemed to be payments made under the Indemnity or Counter Indemnity (as appropriate). Any internal charges shall be made on the same basis as the Indemnitor charges to the applicable Indemnifying Partyits own business or its Affiliates.
(d7) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive It is hereby expressly agreed that, save where the Seller has accepted liability or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to takeliable under the terms of the Indemnity, all commercially reasonable steps to mitigate any Loss upon becoming aware costs incurred by the Purchaser in carrying out environmental analyses and tests of any event the Site(s) (and its (or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation their) surrounds) shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received borne by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Purchaser.
Appears in 1 contract
Limitations. (a) Subject Except with respect to (i) Taxes or (ii) any Loss arising out of any breach of (A) any representation or warranty in Section 4.16 or (B) any of the additional limitations set forth below in this Section 7.5Enbridge Fundamental Representations, Seller Enbridge shall not be liable to the Purchaser EIPLP Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable any Losses with respect to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties matters contained in Section 3.59.2(a)(i) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred aggregate of all Losses in excess of 0.5% of the Aggregate Consideration therefrom for which Enbridge would otherwise be liable exceeds an amount equal to $200,000,000 (the “Deductible”) in the aggregate), in after which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, Enbridge shall only be entitled to bring a claim liable for only those Losses in excess of the Deductible.
(b) Except with respect to (i) Taxes or (ii) any Loss arising out of any breach of (A) any representation or warranty in Section 4.16 or (B) any of the Xxxxxxxx Xxxxxxxxxxx Xxxxxxxxxxxxxxx, Xxxxxxxx shall not be liable to the EIPLP Indemnified Parties with respect to the matters contained in Section 9.2(a)(i) for any individual Loss (or series of related Losses arising from a common set of facts), except to the extent such individual Loss (or series of related Losses arising from a common set of facts) exceeds $4,000,000 (the “Mini-Basket”), and any such individual Losses (or series of related Losses arising from a common set of facts) not in excess of the Mini-Basket will not be aggregated for purposes of calculating the Deductible.
(c) With respect to any Loss arising out of any breach of any representation or warranty in Sections 4.13(a), (b) and (c), Enbridge shall not be liable to the EIPLP Indemnified Parties pursuant to Section 9.2(a)(i) for any such individual Loss, except to the extent such individual Loss exceeds $2,000,000, and any such individual Losses not in excess of such amount will not be aggregated for purposes of calculating the Deductible.
(d) Except with respect to any Loss arising out of any breach of any of the Fund Fundamental Representations, the Fund Entities shall not be liable to the Enbridge Indemnified Parties for any Losses with respect to the matters contained in Section 9.3(a)(i) unless and until the aggregate of all Losses therefrom for which the Fund Entities would otherwise be liable exceeds an amount equal to the Deductible, after which the Fund Entities shall only be liable for Losses in excess of the Deductible.
(e) Except with respect to any Loss arising out of any breach of any of the Fund Fundamental Representations, the Fund Entities shall not be liable to the Enbridge Indemnified Parties with respect to the matters contained in Section 9.3(a)(i) for any individual Loss (or series of related Losses arising from a common set of facts), except to the extent such individual Loss (or series of related Losses arising from a common set of facts) exceeds the Mini-Basket, and any such individual Losses (or series of related Losses arising from a common set of facts) not in excess of the Mini-Basket will not be aggregated for purposes of calculating the Deductible.
(f) In no event shall Enbridge’s aggregate liability to the EIPLP Indemnified Parties for Losses with respect to the matters contained in Section 9.2(a)(i) exceed $4,500,000,000, except with respect to:
(i) any Loss arising out of any breach of any representation or warranty in Section 4.16 or for Taxes, in which case there will be no limit on Enbridge’s liability to the EIPLP Indemnified Parties pursuant to Section 9.2(a)(i) for such Losses; and
(ii) any Loss arising out of any breach of any of the Enbridge Fundamental Representations, in which case Enbridge’s aggregate liability to the EIPLP Indemnified Parties pursuant to Section 9.2(a)(i) for such Losses shall not exceed an amount equal to the aggregate of (A) the Cash Consideration plus (B) an amount equal to the Unit Consideration multiplied by the Market Price on the Closing Date.
(g) In no event shall the Fund Entities’ aggregate liability to the Enbridge Indemnified Parties for Losses with respect to the matters contained in Section 9.3(a)(i) exceed $4,500,000,000, except with respect to any Loss arising out of any breach of any of the Fund Fundamental Representations, in which case the Fund Entities’ aggregate liability to the Enbridge Indemnified Parties pursuant to Section 9.3(a)(i) for such Losses shall not exceed an amount equal to the aggregate of (A) the Cash Consideration plus (B) an amount equal to the Unit Consideration multiplied by the Market Price on the Closing Date.
(h) Notwithstanding anything herein to the contrary, no Indemnified Party shall be entitled to indemnification or reimbursement under any provision of this Agreement for any amount to the extent such Person or its Affiliate has been indemnified or reimbursed for such amount under any other provision of this Agreement. Without limiting the generality of the foregoing, Enbridge’s liability, if any, in respect of Pre-Existing Environmental Issues shall be governed exclusively by the Environmental Indemnity Agreement and Section 9.2(a)(i) shall not apply thereto.
(i) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any an Indemnifying Party be liable to any Indemnified Party under this Article IX for any punitive exemplary, punitive, special, consequential, incidental or treble indirect damages, other than indemnification for amounts paid including lost profits or payable diminution of value or any loss of goodwill or possible business after Closing, whether actual or prospective, except to the extent such damages are asserted by a third parties party in respect of any Third Party Claim for which an Indemnified Party is entitled to indemnification hereunder is otherwise requiredunder this Agreement.
(ej) Each Indemnified Party shall take, and cause its Affiliates to take, all use commercially reasonable steps efforts to mitigate any Loss their respective Losses upon and after becoming aware of any event or circumstance condition that would reasonably be reasonably expected to, or does, to give rise thereto, to any Losses that are indemnifiable hereunder; provided that any costs of such mitigation the Indemnified Party shall be fully reimbursed for any Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received incurred by the Indemnified Party (arising out of or in respect to such mitigation. In the amount event an Indemnified Party fails to so mitigate an indemnifiable Loss, the Indemnifying Party shall have no liability for any portion of such proceeds determined net Loss that reasonably could have been avoided had the Indemnified Party made such efforts. Without limiting the generality of all costs the foregoing, after an Indemnified Party acquires knowledge of recovery thereofany fact or circumstance that results in or reasonably would be expected to result in an indemnified Loss or a Third-Party Claim for which the Indemnifying Party may have Liability to such Indemnified Party, deductibles or retentions thereunder such Indemnified Party shall notify the Indemnifying Party promptly and increases implement such reasonable actions as the Indemnifying Party shall request in premiums as a result thereof)writing for the purposes of mitigating the possible Losses arising therefrom.
Appears in 1 contract
Limitations. (a) Subject No Indemnifying Party shall have any liability under Sections 8.02(a)(i) or (b)(i) related to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (a representation or warranty other than a Fundamental Representation in respect of any individual claim involving Losses to any Indemnified Party of less than $100,000 (each, a breach of “De Minimis Claim”), unless such individual claim is directly related to one or inaccuracy more other claims which in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred aggregate involve Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate$100,000, in which case case, the Purchaser Indemnifying Party will have liability for the full amount of such claims (subject to the other limitations contained in this Section 8.04) and such claims shall not be considered De Minimis Claims.
(b) No Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, Party shall be entitled to bring indemnification pursuant to Section 8.02(a)(i) related to a claim representation or warranty other than a Fundamental Representation unless the aggregate of all Losses claimed by the Buyer Indemnified Parties pursuant to such section that are not De Minimis Claims exceeds $10,000,000 (the “Claim Deductible”), in which case, subject to Section 8.04(d), Seller shall indemnify the Buyer Indemnified Party only for only those the Losses in excess of the Claim Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying No Seller Indemnified Party shall be entitled to indemnification pursuant to Section 7.2 8.02(b)(i) related to a representation or Section 7.3 in respect warranty other than a Fundamental Representation unless the aggregate of any Loss shall be reduced all Losses claimed by the amount of any amounts actually recovered by Seller Indemnified Parties pursuant to such section exceeds the Claim Deductible, in which case, subject to Section 8.04(d), Buyer shall indemnify the Seller Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such only for the Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount excess of the recovery shall be promptly made to the applicable Indemnifying PartyClaim Deductible.
(d) In no event Seller shall not have any Indemnifying Party be liable obligation to indemnify the Buyer Indemnified Parties under Section 8.02(a)(i) for Losses that exceed, in the aggregate, $150,000,000; provided, however, that such limitation shall not apply to Losses of the Buyer Indemnified Parties arising from any Fundamental Representation, and Seller’s aggregate liability for such Losses, together with any other indemnifiable Losses, shall not exceed the Purchase Price. Buyer shall not have any obligation to indemnify the Seller Indemnified Party Parties under Section 8.02(b)(i) for Losses that exceed, in the aggregate, $150,000,000; provided, however, that such limitation shall not apply to Losses of the Seller Indemnified Parties arising from any punitive or treble damagesFundamental Representation, and Buyer’s aggregate liability for such Losses, together with any other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredindemnifiable Losses, shall not exceed the Purchase Price.
(e) Each Indemnified Party shall takeNOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, and cause its Affiliates to takeNEITHER BUYER, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected toSELLER NOR THEIR RESPECTIVE AFFILIATES SHALL BE LIABLE HEREUNDER TO ANY INDEMNIFIED PARTY FOR ANY (I) PUNITIVE OR EXEMPLARY DAMAGES OR (II) LOST PROFITS OR CONSEQUENTIAL, or doesSPECIAL OR INDIRECT DAMAGES EXCEPT, give rise theretoIN THE CASE OF THIS CLAUSE (II), provided that any costs of such mitigation shall be Losses indemnified hereunderTO THE EXTENT SUCH LOST PROFITS OR DAMAGES ARE (X) NOT BASED ON ANY SPECIAL CIRCUMSTANCES OF THE PARTY ENTITLED TO INDEMNIFICATION AND (Y) THE NATURAL, PROBABLE AND REASONABLY FORESEEABLE RESULT OF THE EVENT THAT GAVE RISE THERETO OR THE MATTER FOR WHICH INDEMNIFICATION IS SOUGHT HEREUNDER, REGARDLESS OF THE FORM OF ACTION THROUGH WHICH SUCH DAMAGES ARE SOUGHT, EXCEPT IN EACH CASE OF THE FOREGOING CLAUSES (I) AND (II), TO THE EXTENT ANY SUCH LOST PROFITS OR DAMAGES ARE INCLUDED IN ANY ACTION BY A THIRD PARTY AGAINST SUCH INDEMNIFIED PARTY FOR WHICH IT IS ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 1 contract
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreementherein, (i) the maximum aggregate liability of Seller or Purchaser the Indemnifying Shareholders for Damages under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationaggregate value of the Escrow Shares, (ii) the Indemnifying Shareholders shall not be liable under Section 8.1(a) unless and until the aggregate Damages for which they or it would otherwise be liable exceed $750,000 (at which point the Indemnifying Shareholders shall become liable for the aggregate Damages, and not just amounts in excess of $750,000, and (iii) each Indemnifying Shareholder shall only be liable for his, her or its pro rata share (based on the number of Merger Shares received by such Indemnifying Shareholder as a percentage of the total number of Merger Shares issued).
(b) In no event will the Indemnifying Shareholders be liable for any claims alleging incidental, consequential, special or indirect damages (including, without limitation, any damages arising from the loss of business, data, profits or goodwill) incurred or suffered by an Indemnified Party with respect to this Agreement or the transactions contemplated hereby, even if the Indemnifying Shareholders have been informed of the likelihood of such claim; provided, however, that incidental, consequential, special or indirect damages (including, without limitation, any damages arising from the loss of business, data, profits or goodwill) incurred or suffered by any third-party which such third-party is awarded from any Indemnified Party shall be considered as "Damages" for which the Indemnified Party is liable pursuant to this Agreement.
(c) Payments by an Indemnifying Party pursuant The Escrow Agreement, among other things, is intended to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by secure the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount indemnification obligations of the recovery shall be promptly made to the applicable Indemnifying PartyShareholders under this Agreement.
(d) In no event Except with respect to claims based on fraud, after the Merger Closing, the rights of the Indemnified Parties under this Article VIII and the Escrow Agreement shall any Indemnifying Party be liable the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any Indemnified Party for misrepresentation, breach of warranty or failure to perform any punitive covenant or treble damages, other than indemnification for amounts paid or payable to third parties agreement contained in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredthis Agreement.
(e) Each Indemnified Party No Indemnifying Shareholder shall take, and cause its Affiliates have any right of contribution against the Company or the Surviving Corporation with respect to take, all commercially reasonable steps to mitigate any Loss upon becoming aware breach by the Company of any event of its representations, warranties, covenants or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).agreements. 57
Appears in 1 contract
Limitations. (a) Threshold. Subject to Section 9.3(b), the additional limitations set forth below in this Section 7.5, Seller Company shall not be liable required to the Purchaser Indemnified Parties make any indemnification payment pursuant to Section 9.2(a)(i) or Section 9.2(a)(ii) for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a any breach of or inaccuracy in any Fundamental Representations General Company Representation or any Company Compliance Representation or pursuant to Section 9.2(a)(vi) (with respect to breaches of the or inaccuracies in representations and warranties contained in Section 3.5) unless and until to which the Purchaser Indemnified Parties or the Seller Indemnified Parties, as Threshold Amount is applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a9.2(a)(vii) (other than with respect to Legal Proceedings identified on Part 2.14(c) or Part 2.19(a)-1 of the Disclosure Schedule that are not Specified Tax Proceedings) until such time as the total amount of all Damages that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise directly or indirectly become subject, in respect of a connection with any breach of or inaccuracy in any Fundamental of the General Company Representations or any the Company Compliance Representations or in connection with the matters referred to in Section 9.2(a)(vi) (with respect to breaches of the or inaccuracies in representations and warranties contained in to which the Threshold Amount is applicable) or Section 3.5), as applicable, shall not exceed 20% 9.2(a)(vii) (with respect to Legal Proceedings identified on Part 2.14(c) or Part 57
(a) 1 of the Aggregate Consideration Disclosure Schedule that are not Specified Tax Proceedings) exceeds $7,500,000 in the aggregate for all such Damages (the “Threshold Amount”). If the total amount of such Damages exceeds the Threshold Amount, then: (i) with respect to the first $7,500,000 of such aggregate Damages, the Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for $3,750,000 of such Damages; and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to the portion of such Losses less aggregate Damages exceeding the amount of any costs of obtaining such recoveryThreshold Amount, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery Indemnitees shall be promptly made entitled to be indemnified against and compensated and reimbursed for the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the entire amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Damages.
Appears in 1 contract
Samples: Share Issuance and Acquisition Agreement (Walmart Inc.)
Limitations. (a) Subject The Sellers and Stockholders shall be obligated to the additional limitations set forth below in this Section 7.5, Seller shall not be liable indemnify for Losses (determined without regard to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy any materiality qualification contained in any Fundamental Representations representation, warranty or covenant giving rise to a claim for indemnity hereunder) arising out of, resulting from or otherwise relating to any of the representations events described in clause (i) of Section 8.1 only to the extent that the aggregate amount of such Losses exceed Two Million Dollars ($2,000,000). The Purchasers and warranties JAKKS shall be obligated to indemnify for Losses (determined without regard to any materiality qualification contained in Section 3.5) unless and until the Purchaser Indemnified Parties any representation, warranty or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled covenant giving rise to bring a claim for only those Losses in excess indemnity hereunder) arising out of, resulting from or otherwise relating to any of the Deductibleevents described in clause (i) of Section 8.2 only to the extent that such Losses exceed Two Million Dollars ($2,000,000).
(b) Notwithstanding anything In no event shall the aggregate indemnification liability of Sellers and Stockholders pursuant to Section 8.1 exceed the sum of $43,000,000; provided, however, that such limitation shall not apply to any obligation to indemnify for Losses from Actions brought on the basis of intentional misrepresentation or fraud or Losses arising out of, resulting from or otherwise relating to the contrary contained in this Agreement, (i) Excluded Assets or Excluded Liabilities. In no event shall the maximum aggregate indemnification liability of Seller or Purchaser under this Article VII Purchasers and JAKKS pursuant to Section 8.2 exceed $43,000,000; provided, however, that such limitation shall not apply to any obligation to indemnify for Losses indemnified under Section 7.2(a) from Actions brought on the basis of intentional misrepresentation or Section 7.3(a) (other than in respect of a breach of fraud or inaccuracy in any Fundamental Representations Losses arising out of, resulting from or any of otherwise relating to the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationAssumed Obligations.
(c) Payments by an Indemnifying Party The amount of any Losses for which indemnification is provided under this Agreement (whether pursuant to Section 7.2 this Article 8 or Section 7.3 in respect otherwise) shall be limited to the net after-tax effect of any Loss actual damages and shall be reduced by the amount of any amounts actually recovered insurance proceeds received by the Indemnified Party under pursuant to any insurance policies, indemnities or other reimbursement arrangements with respect policy as a result of the Losses giving rise to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insuranceindemnification payment. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal Notwithstanding anything herein to the aggregate amount contrary, in the absence of the recovery intentional misrepresentation or fraud no party shall be promptly made to the applicable Indemnifying Partyheld liable for consequential, special or punitive damages.
(d) In no the event shall of the breach of any Indemnifying Party be liable to any Indemnified Party for any punitive representation, warranty, covenant or treble damagesagreement contained in this Agreement, the schedules and exhibits hereto or in the Related Documents, other than indemnification the right to bring an action for amounts paid intentional misrepresentation or payable to third fraud, the sole and exclusive right and remedy of the parties in respect of any Third Party Claim hereto for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation money damages shall be Losses indemnified hereunder.
a claim for indemnification (fi) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received Article 8 and/or (ii) as provided by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles specific covenant or retentions thereunder and increases in premiums as a result thereof)agreement at issue.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Jakks Pacific Inc)
Limitations. (a) Subject Except in the case of fraud, intentional misrepresentation or willful breach, no indemnification shall be payable to the additional limitations set forth below in Parent Indemnified Parties under Section 7.2(a)(i), (ii) or (iv) and no indemnification shall be payable to the Company Indemnified Parties under Section 7.2(b)(i), (ii) or (iii) unless the aggregate of all applicable Losses for which the Company Indemnifying Parties (including the Principal) or the Parent Indemnifying Parties, as the case may be, would, but for this Section 7.57.4, Seller shall not be liable exceeds on a cumulative basis $50,000, whereupon the full amount of any such claims commencing with the first dollar shall be recoverable in accordance with the terms hereof and then only to the Purchaser Indemnified extent of any such excess. In any event, except in the case of fraud, intentional misrepresentation or willful breach, (x) the maximum aggregate amount for which the Company Indemnifying Parties for indemnification shall collectively be liable under Section 7.2(a) and Purchaser shall not exceed an aggregate of $1,100,000; (y) the maximum aggregate amount for which the Parent Indemnifying Parties shall collectively be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a7.2(b) shall not exceed an aggregate of $1,100,000 (other than except in respect the case of a breach of or inaccuracy in failure to make any Fundamental Representations or any of required payments under Article III hereof); and (z) the representations and warranties contained in Section 3.5) unless and until maximum aggregate amount for which the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, Principal shall be entitled to bring a claim for only those Losses in excess liable under Section 7.2(c) shall not exceed an aggregate of the Deductible$1,100,000.
(b) The amount of any Loss for which indemnification is provided to an Indemnified Party under this Agreement shall be net of any amount (i) recovered by such Indemnified Party (after deducting all costs of recovery, including but not limited to reasonable attorney’s fees and expenses, and any increase in premium) from any insurer in respect of such Losses, and such Indemnified Party shall use commercially reasonable efforts to effect any such recovery that may be available to it, or (ii) (with respect to the Company Indemnifying Parties or the Principal) reserved, accrued or expensed on the Closing Balance Sheet with reasonable specificity with respect to the facts, circumstances or matters giving rise to such Loss.
(c) Notwithstanding anything contained herein to the contrary, no Indemnifying Party shall be liable for lost profits or any punitive, exemplary, consequential or similar damages and under no circumstances shall such damages be considered “Losses” under this Agreement, except for (i) lost profits or punitive, exemplary, consequential or similar damages actually paid to a third party in a third party claim by an Indemnified Party and (ii) until the Special Representations Expiration Date, lost profits or consequential or similar damages incurred by Parent or the Surviving Corporation as a result of any infringement claim against Parent or the Surviving Corporation arising out of their use of Intellectual Property owned or licensed by the Company as of the Effective Time or the sale or distribution of Company Products.
(d) Notwithstanding anything to the contrary contained in this Agreementherein, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) with respect to indemnification claims (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (iithird party claims) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under pursuant to this Article VII (other than VII, in respect the event it is determined either by mutual agreement or by a court of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by competent jurisdiction that the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect is not entitled to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified indemnification hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, promptly reimburse all reasonable attorney’s fees and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs expenses incurred by the other party in defense of such mitigation shall be Losses indemnified hereunderclaim.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 1 contract
Samples: Merger Agreement (Salary. Com, Inc.)
Limitations. (a) Subject Except in the event of the Actual Fraud of Seller, with respect to the additional limitations set forth below in this any claim seeking recovery of Loss under Section 7.59.2(a), Buyer’s sole source of recovery against Seller shall not be liable to against the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) remaining Escrow Funds then held in the aggregateEscrow Account, and in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall no event will Buyer be entitled to bring make a claim for only those Losses in excess of the Deductibleindemnification against, seek to recover from, or have any right to recover directly from Seller for such Losses.
(b) Notwithstanding anything The amount of Losses payable under this ARTICLE IX by the Indemnitor shall be reduced by any and all amounts recovered by the Indemnitee under applicable insurance policies or from any other person alleged to be responsible therefor, net of any out-of-pocket expenses incurred by such Indemnitee in collecting such amount; provided, that, for the avoidance of doubt, any Loss eroding all or any part of the deductible or retention (the “R&W Deductible”) under the Representation and Warranty Policy obtained in connection with the transactions contemplated by this Agreement shall be considered a “Loss” under this Agreement and such Loss may be recovered from the Escrow Funds; provided, further, that Buyer shall be entitled to make a claim for indemnification hereunder without regard to whether Buyer is also proceeding against the Representation and Warranty Policy with respect to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Considerationsame Losses.
(c) Payments by an Indemnifying Party pursuant In no event shall Buyer be entitled to Section 7.2 recover or Section 7.3 make a claim for any amounts in respect of, and in no event shall “Losses” be deemed to include (i) any loss, liability, damage or expense to the extent included as a liability or expense in the Financial Statements or (ii) any Losses consisting of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect relating to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party Taxes with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to taxable period (or portion thereof) beginning after the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying PartyClosing Date.
(d) In no The Indemnitee agrees that in the event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which breach giving rise to an indemnification hereunder is otherwise required.
(e) Each Indemnified Party obligation under this ARTICLE IX, such Indemnitee shall take and shall cause its affiliates to take, and cause its Affiliates or cooperate with the Indemnitor, if so requested by the Indemnitor, in order to take, all commercially reasonable measures to mitigate the consequences of the related breach (including taking steps to mitigate prevent any Loss upon contingent liability from becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereofan actual liability).. ARTICLE X MISCELLANEOUS 10.1
Appears in 1 contract
Samples: Asset Purchase Agreement
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, the following limitations shall apply to indemnification claims under this Agreement:
(A) except with respect to breaches of the Seller Fundamental Representations, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified shall be liable with respect to claims under Section 7.2(a4.1(a) or Section 7.3(aonly if the aggregate Damages related to such claims, considered together, exceed one percent (1%) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained Adjusted Purchase Price (the "Deductible Amount") and, in Section 3.5)such event, as applicable, indemnification shall not exceed 20% of be made by the Aggregate Consideration Seller for all such aggregate Damages above $250,000 (with the Buyer responsible for the first $250,000) and (ii) the maximum Seller shall not be liable with respect to (and the Buyer shall be responsible for) any claims under Section 4.1(a) if the aggregate Damages related to such claims, considered together, are equal to or less than the Deductible Amount, and (B) except with respect to breaches of the Buyer Fundamental Representations, the Buyer shall be liable with respect to claims under Section 4.2(a) only if the aggregate Damages related to such claims, considered together, exceed the Deductible Amount and, in such event, indemnification shall be made by the Buyer for all such aggregate Damages above $250,000 (with the Seller responsible for the first $250,000) and (ii) the Buyer shall not be liable with respect to (and the Seller shall be responsible for) any claims under Section 4.2(a) if the aggregate Damages related to such claims, considered together, are equal to or less than the Deductible Amount; and
(ii) the aggregate liability of the Seller or Purchaser for Losses indemnified indemnification claims under this Article VII Section 4.1(a) (other than in indemnification claims with respect to breaches of Losses indemnified the Seller Fundamental Representations) shall not exceed an amount equal to ten percent (10%) percent of the Adjusted Purchase Price (the "Cap") and (B) the aggregate liability of the Buyer for indemnification claims under Section 7.2(c)4.2(a) or Article VIII (other than indemnification claims with respect to breaches of the Buyer Fundamental Representations) shall not exceed the Aggregate ConsiderationCap;
(iii) the Buyer shall not be entitled to make any claim for indemnification with respect to any matter to the extent the Purchase Price or Adjusted Purchase Price has been adjusted to reflect such matter pursuant to Section 1.4 or Section 7.11, and the Buyer's sole remedy for claims relating to (a) any asset or liability within the categories included within the Final Closing Statement shall be as provided in Section 1.4 and (b) any item on the Reconciliation Schedule shall be as provided in Section 7.11; and
(iv) the amount of any Damages for which a Party is entitled to indemnification as provided under this ARTICLE IV shall be calculated net of any accruals, reserves or provisions therefor reflected in the Final Closing Statement.
(b) Each Indemnified Party shall (and shall cause its Affiliates to) use commercially reasonable efforts to pursue all legal rights and remedies available in order to minimize the Damages for which indemnification is provided to it under this ARTICLE IV, provided that the reasonable out-of-pocket costs incurred by an Indemnified Party in minimizing such Damages may be claimed as indemnifiable Damages under this ARTICLE IV.
(c) Payments The amount of Damages recoverable by an Indemnifying Indemnified Party pursuant under this ARTICLE IV with respect to Section 7.2 or Section 7.3 in respect of any Loss an indemnity claim shall be reduced by (i) the amount of any amounts actually recovered payment received by such Indemnified Party (or an Affiliate thereof), with respect to the Damages to which such indemnity claim relates, from an insurance carrier or any other Person or entity and (ii) the amount of any Tax benefit realized by such Indemnified Party (or an Affiliate thereof) which is attributable to the Damages to which such indemnity claim relates. If an Indemnified Party (or an Affiliate) receives any insurance payment or Tax benefit in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within thirty (30) days of receiving such insurance payment or Tax benefit, an amount equal to the excess of (A) the amount previously received by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements this ARTICLE IV with respect to such Losses less claim plus the amount of any costs the insurance payments and Tax benefits received, over (B) the amount of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party Damages with respect to any Loss for such claim which any such Person the Indemnified Party has been indemnified hereunder, then a refund equal become entitled to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyreceive under this ARTICLE IV.
(d) The Parties agree that where one and the same facts qualifies under more than one provision entitling the Buyer or the Seller to a claim or remedy under this Agreement, there shall be only one claim or remedy.
(e) In no event shall any Indemnifying Indemnified Party be liable entitled to indemnification pursuant to this ARTICLE IV to the extent any Damages were attributable to such Indemnified Party for any punitive Party's own willful misconduct or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderfraud.
(f) All Losses indemnified To the extent the Seller makes any payment pursuant to this Agreement ARTICLE IV in respect of Damages for which the Buyer or any of its Affiliates have a right to recover against a third party (including an insurance carrier), the Seller shall be net subrogated to the right of the proceeds Buyer or any of its Affiliates to seek and obtain recovery from such third party. The Buyer or its Affiliates shall duly execute upon request of the Seller all instruments reasonably necessary to evidence and perfect the subrogation rights set forth in this subsection (f), and otherwise cooperate in the prosecution of such claims.
(g) Except with respect to (i) claims for equitable relief, including specific performance, made with respect to breaches of any third-party insurance coverage actually received covenant or agreement contained in this Agreement and (ii) claims for fraud, the rights of the Indemnified Parties under this ARTICLE IV and under ARTICLE V shall be the sole and exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims covered by Section 4.1, Section 4.2, or ARTICLE V or otherwise relating to the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its successors or permitted assigns be entitled to claim or seek rescission of the transactions consummated by this Agreement.
(h) Notwithstanding anything herein to the contrary, in no event shall the Buyer be entitled to the release of any Escrow Amount as satisfaction of a claim by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Buyer made pursuant to Section 4.1.
Appears in 1 contract
Samples: Asset Purchase Agreement (Higher One Holdings, Inc.)
Limitations. Notwithstanding anything in this Article VI to the contrary:
(a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser The Buyer Indemnified Parties for shall only have the right to indemnification pursuant to Section 6.1(a)(i) if the Buyer Indemnified Parties shall have incurred, as to all matters giving rise to indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect 6.1(a)(i), an aggregate amount of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Buyer Losses in excess of 0.5% of the Aggregate Consideration an amount equal to $20,000 (the “"Deductible”) in "), whereupon, provided the aggregateother requirements of this Article VI have been complied with and subject to the other limitations of this Article VI, in which case the Purchaser Seller shall be liable to indemnify Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim only for only those Losses in excess of the Deductible; provided, however, that the foregoing limitation shall not apply to any Buyer Losses arising out of any claims resulting from (i) fraud, or (ii) breaches of any of the Fundamental Representations made by Seller.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the The maximum aggregate liability of Seller or Purchaser under this Article VII for all Buyer Losses indemnified under Section 7.2(apursuant to Sections 6.1(a)(i) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of shall be the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and Purchase Price.
(ii) the The maximum aggregate liability of Buyer for all Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under pursuant to Section 7.2(c6.2(a) shall be an amount equal to Section 2.3(a)(i)) or Article VIII ; provided, however, that the foregoing limitation shall not exceed apply to any Losses arising out of claims (A) resulting from fraud, or (B) resulting from breaches of any of the Aggregate ConsiderationFundamental Representations made by Buyer.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, take all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that which would reasonably be reasonably expected to, or does, give rise thereto, provided including incurring costs only to the minimum extent necessary to remedy the breach which gives rise to the Loss.
(d) The amount of any Losses incurred by any Indemnified Party shall be reduced by the net amount that such Indemnified Party actually recovers (after deducting all reasonable attorneys' fees, out-of-pocket expenses, deductibles and other costs of recovery) from any insurer or third party liable for such Losses. If an Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of reasonable attorneys' fees, out-of-pocket expenses, deductibles and other costs of recovery.
(e) The amount of any Losses incurred by any Indemnified Party shall be reduced by an amount equal to any income Tax benefit actually realized by such Indemnified Party resulting from the incurrence or payment of such Losses, determined after taking into account any income Tax detriment of any indemnification payments made or to be made in connection with such Losses, but only to the extent that any costs such reduction does not prevent Indemnified Party from recovering the full amount of such mitigation shall be Losses indemnified hereunderdetermined on an after Tax basis.
(f) All Notwithstanding anything in this Article VI, no Indemnified Party or its successors or assigns shall have any right or entitlement to indemnification from an Indemnifying Party for any Losses indemnified to the extent that such Indemnified Party or its successors and assigns had already recovered such Losses with respect to the same matter pursuant to any other provision of this Agreement Agreement, and such Indemnified Party shall be net deemed to have waived and released any claims for such Losses to the extent already recovered hereunder by such Indemnified Party and shall not be entitled to assert any such claim for indemnification for such Losses.
(g) In no event shall any Person be entitled to 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 proceeds foregoing, no "multiple of any third-party insurance coverage actually received by the Indemnified Party (earnings" or "multiple of cash flow" or similar valuation methodology shall be used in calculating the amount of any Losses.
(h) In the event Buyer proceeds with the Closing notwithstanding Buyer's knowledge at or prior to the Closing of any breach by Seller of any representation, warranty, agreement or covenant contained in this Agreement, no Buyer Indemnified Party shall have any claim or recourse against Seller with respect to such proceeds determined net of all costs of recovery thereof, deductibles breach under this Article VI or retentions thereunder and increases in premiums as a result thereof)otherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (Security National Financial Corp)
Limitations. (a) Subject None of the Buyer Indemnified Parties shall be entitled to assert any right to indemnification under Section 9.2(a) or Section 9.2(c) with respect to a claim or series of related claims if such claim or series of related claims arising out of the additional same or similar set of facts or circumstances where the Losses related thereto are less than $100,000 (each, a “De Minimis Loss”). The Seller will not have liability pursuant to Section 9.2 until the aggregate amount of all Losses, not including any De Minimis Losses, actually incurred by the Buyer Indemnified Parties with respect to such matters exceeds $200,000 (the “Deductible”), in which case the Buyer Indemnified Parties shall have the right to seek indemnification for all Losses in excess of, but not including, the Deductible (it being understood that any Claim (including any related Claims) for amounts less than the De Minimis Loss shall be ignored in determining whether the Deductible has been exceeded); provided, however, that the limitations set forth below in this Section 7.5, Seller 9.4(a) shall not be liable apply to Losses based on breaches of the Fundamental Representations.
(b) Notwithstanding any other provision in this Agreement to the Purchaser Indemnified Parties for indemnification contrary, the Seller’s aggregate liability under Section 7.2(a9.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a9.2(c) (other than in respect of claims based on Fundamental Representations or Fraud) shall be limited to $2,000,000. Notwithstanding anything to the contrary herein, the aggregate liability of the Seller with respect to indemnifiable Losses pursuant to Section 9.2 (including Losses based upon a breach of a Fundamental Representation, a breach of covenant under Section 9.2(b), and/or Fraud) shall in no event exceed the Purchase Price.
(c) Notwithstanding anything to the contrary herein, to the extent that the Buyer Indemnified Parties assert any right to indemnification pursuant to Section 9.2(c) and the basis of such claim for indemnification also constitutes a breach of a representation and warranty pursuant to Section 9.2(a), then the limitations in Section 9.4(a) and Section 9.4(b) shall apply to such claim and shall limit the Losses that the Buyer Indemnified Parties may otherwise recover.
(d) No indemnifying Person will be liable for any Losses that are subject to indemnification under Section 9.2 or inaccuracy in any Fundamental Representations or any Section 9.3 unless a written demand for indemnification under this Agreement is delivered by the indemnified Person to the indemnifying Person with respect thereto prior to 5:00 P.M. Central Time on the date pursuant to Section 9.1 on which the survival period of the applicable representations and warranties contained or covenants expires, to assert a Claim for indemnification describing such Claim in Section 3.5) unless reasonable detail, including the factual circumstances giving rise to and the provisions under this Agreement on which such Claim is based. Notwithstanding the foregoing, any Claim for indemnification under this Agreement that is duly brought prior to such time will survive until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductiblesuch matter is resolved.
(be) Notwithstanding anything to the contrary contained in this Agreement, (i) under no circumstances will any Party or any of its Affiliates be entitled to recover more than one time for any Loss under this Agreement, and to the maximum aggregate liability extent a Party or any of Seller its Affiliates is compensated for a matter through the adjustments provided for in Section 2.6 or Purchaser otherwise, such Party and its Affiliates will not have a separate right to indemnification for such matter. Without limiting the generality of the prior sentence, if a set of facts, conditions or events constitutes a breach of more than one representation, warranty, covenant or agreement that is subject to the indemnification obligations under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5)9, as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect only one recovery of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policiesallowed, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase and in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall there be any Indemnifying Party be liable to any Indemnified Party for any punitive indemnification or treble damagesduplication of payments or recovery under different provisions of this Agreement arising out of the same or similar facts, other than indemnification for amounts paid conditions or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderevents.
(f) All Notwithstanding anything to the contrary contained in this Agreement, the Seller shall not be liable under this Article 9 for any Losses indemnified under Section 9.2, based upon or arising out of any inaccuracy in or breach of any of the representations or warranties of the Seller, or otherwise contained in this Agreement if the Buyer had Knowledge of such inaccuracy or breach prior to the Closing. Notwithstanding anything to the contrary herein, the Buyer shall be deemed to have “Knowledge” with respect to any documents or information disclosed in or provided pursuant to the management presentations presented to the Buyer in connection with the transactions contemplated herein, the Schedules or any documents made available to the Buyer in connection with the transactions contemplated herein.
(g) Any payments made pursuant to this Agreement Article 9 shall be net of treated as adjustments to the proceeds of any third-party insurance coverage actually received Purchase Price for all applicable Tax purposes, unless otherwise required by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Law.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Martin Midstream Partners L.P.)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, except in the case of actual and intentional fraud (as defined under Delaware common law), (i) the amount of Damages that may be recovered by an Indemnified Party under Section 5.1(a) or Section 5.2(a) shall not exceed $225,000 (provided that (A) such limitation shall not apply to the Fundamental Reps or to the Specified Representations and (B) the amount of Damages that may be recovered by an Indemnified Party under Section 5.1(a) or Section 5.2(a) with respect to the Specified Representations shall not exceed $1,000,000), and (ii) an Indemnified Party shall not be permitted to recover any Damages under Section 5.1(a) or Section 5.2(a), as the case may be, until the aggregate amount of all such Damages exceeds an amount equal to $100,000 (the “Threshold Amount”) (other than with respect to the Fundamental Reps). If the total amount of such Damages exceeds the Threshold Amount, then the Indemnified Party shall be entitled to be indemnified against and compensated and reimbursed for the entire amount of such Damages, and not merely the portion of such Damages exceeding the Threshold Amount. Notwithstanding anything else herein, the maximum aggregate liability of Seller the Buyer or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5)Seller, as applicable, shall not exceed 20% pursuant to Section 5.1 shall, in each case, be the amount of any payments actually paid by the Aggregate Consideration Buyer and received by the Seller (iibefore deduction of any applicable Taxes).
(b) the maximum aggregate liability The amount of Seller or Purchaser for Losses indemnified Damages recoverable by an Indemnified Party under this Article VII (other than in V with respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by to an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss indemnity claim shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities payment or other reimbursement arrangements with respect to third-party recovery actually received by such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to such indemnity claim minus the amount of any Loss increase in insurance premiums and reasonable costs of collection directly attributable to such recovery (the “Recovery”). If an Indemnified Party receives any insurance payment or third-party payment in connection with any claim for Damages for which any such Person it has already been indemnified hereunderby the Indemnifying Party, then a refund it shall pay to the Indemnifying Party, within 30 calendar days of receiving such insurance payment, an amount equal to the aggregate amount of the recovery shall be promptly made Recovery (up to the applicable amount paid by the Indemnifying Party).
(dc) In no event shall any Indemnifying Party be responsible or liable to any Indemnified Party for any punitive Damages or treble other amounts under this Article V that are (i) consequential damages or Damages for lost profits or diminution in value, in each case except for those that are reasonably foreseeable and proximately caused by the asserted breach, or (ii) punitive, special, trebled or exemplary damages, in each case other than indemnification for any amounts paid or payable to an unaffiliated third parties in party with respect of any to Third Party Claim for which indemnification hereunder is otherwise requiredClaims based on a final judgment.
(ed) Each Except with respect to claims related to actual and intentional common law fraud by the Seller (provided that, for the avoidance of doubt, the Specified Representatives shall be deemed to have acted on behalf of the Seller (but not in their individual capacities) for purposes of this sentence) or the Buyer or for specific performance as provided in Section 6.9, from and after the Closing the rights of the Indemnified Party Parties under this Article V shall take, be the sole and cause its Affiliates exclusive remedies of the Indemnified Parties with respect to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected toclaims under, or doesotherwise relating to the transactions that are the subject of, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net Agreement. Without limitation of the proceeds foregoing, in no event shall any party, its successors or permitted assigns be entitled to claim or seek rescission of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Contemplated Transactions.
Appears in 1 contract
Samples: Asset Purchase Agreement (Merrimack Pharmaceuticals Inc)
Limitations. (a) Subject to The Shareholder, the additional limitations set forth below in this Section 7.5, Seller Noteholder and the Phantom Unit Holders shall not be liable only have liability to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) or any other Person hereunder, and the Purchaser shall not be liable only have liability to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Shareholder Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Noteholder Indemnified Parties or and the Seller Company Indemnified Parties, as applicableand any other Person hereunder, shall be entitled to bring a if the claim for only those Losses which indemnification is sought was the subject of a written notice given by the Indemnified Party pursuant to Section 13.8 within the applicable period following the Closing Date specified in excess of the DeductibleSection 13.1.
(b) Notwithstanding anything to the contrary contained in this Agreement, Agreement and except for Purchaser Losses arising out of a claim for (i) the maximum aggregate liability of Seller fraud, or Purchaser under this Article VII for Losses indemnified under Section 7.2(a(ii) or Section 7.3(a) (other than in respect of a breach of a Fundamental Representation by the Shareholder, the Noteholder or inaccuracy in the Company, the Shareholder, the Noteholder and the Phantom Unit Holders shall have no liability to any Fundamental Representations Purchaser Indemnified Party hereunder to the extent the aggregate amount of Purchaser Losses payable by the Shareholder, the Noteholder or any the Phantom Unit Holders, as the case may be, hereunder exceeds the then-current amount of the representations and warranties contained in Section 3.5funds held pursuant to the Escrow Agreement (Shareholder), as applicablethe Escrow Agreement (Noteholder) and the Escrow Agreement (Phantom Unit Holder), shall not exceed 20% of the Aggregate Consideration respectively, and (ii) the maximum aggregate any liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII Agreement to any Purchaser Indemnified Party shall not exceed the Aggregate Considerationbe satisfied solely from such amounts.
(c) Payments Purchaser Losses arising under Section 13.2(a) out of or to the extent related to a breach of a Fundamental Representation by an Indemnifying the Shareholder shall be subject to the Shareholder Cap. Purchaser Losses arising under Section 13.4(a) out of or to the extent related to a breach of a Fundamental Representation by the Noteholder shall be subject to the Noteholder Cap.
(d) The remedies provided in this Article XIII, Section 8.6 and Section 12.2 shall be the sole and exclusive remedies of the Parties hereto from and after the Closing in connection with any claim or action arising out of this Agreement other than claims for fraud or a breach of Section 8.1 (Further Actions).
(e) Notwithstanding anything herein to the contrary, except with respect to a breach of a Fundamental Representation or a representation or warranty in Section 4.7 or fraud, no Purchaser Indemnified Party shall assert any claim for indemnification pursuant to Section 7.2 13.3(a), Section 13.5(a) or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to 13.6(a) unless and until the aggregate amount of the recovery shall Purchaser Losses that would otherwise be promptly made payable pursuant to this Article XIII with respect to all such claims exceeds $1,500,000, and then only to the applicable Indemnifying Partyextent of such excess, subject to the other limitations set forth in Section 13.9.
(df) In no event shall any Indemnifying Party be liable have any liability to any Person for lost profits, consequential, exemplary or punitive damages arising out of or in any manner relating to this Agreement in the absence of fraud, provided, however, that such limitation shall not be construed to limit an Indemnified Party for Party’s ability to recover under this Agreement any Losses resulting from a claim pursuant to which a third party has been awarded lost profits, consequential, exemplary or punitive damages or treble damages, other than indemnification for amounts paid or payable to third parties in respect any losses resulting from the fraud of any Third Party Claim for which indemnification hereunder is otherwise requireda Party.
(eg) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware The amount of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that Losses payable under this Article XIII by any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement Indemnifying Party shall be net of the proceeds of any third-party insurance coverage actually received amounts recovered by the Indemnified Party (i) under applicable insurance policies after taking into account all deductibles paid in connection therewith and any increase or expected increase in premiums that result from making any claim for insurance or (ii) from any other Person alleged to be responsible therefor. The amount of any Losses payable under this Article XIII by any Indemnifying Party shall be also be net of any Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such indemnified Loss. For purposes of the preceding sentence, the Tax benefit actually realized by an Indemnified Party shall mean, with respect to a taxable year of the Indemnified Party and without duplication, the excess, if any, of (i) such Indemnified Party’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the indemnified Loss for all taxable years, over (ii) such Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the indemnified Loss for all taxable years (to the extent permitted by relevant Tax law and treating such Tax items as the last items claimed for any taxable year), such Indemnified Party’s calculation (which calculation shall be made in good faith and shall be accompanied by a reasonably detailed explanation delivered to the Indemnifying Party and such other information as it reasonably requested by the Indemnifying Party) being binding on all parties hereto without any other party’s review of any books, records or Tax Returns of such Indemnified Party. If the Indemnified Party receives any amounts under applicable insurance policies (after taking into account all deductibles paid in connection therewith and any increase in premiums that result from making any claim for insurance), or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.
(h) If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to this Article XIII and the Indemnified Party could recover (or could have recovered) all or part of such Losses from a third party (a “Potential Contributor”) based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such proceeds determined net payment.
(i) Notwithstanding anything to the contrary contained herein, for purposes of all costs calculating the amount of recovery thereofindemnification Losses or Damages under Article XIII of this Agreement (but not determining whether a breach has occurred), deductibles any materiality, Material Adverse Effect or retentions thereunder similar qualifier contained in the representations or warranties in Article II, Article III, Article IV and increases Article V will be disregarded once the amount of Losses or Damages with respect to breaches of the specific representation or warranty at issue exceed $25,000 in premiums as the aggregate, except that the foregoing shall not apply for purposes of calculating the amount of indemnification Losses or Damages under Article XIII of this Agreement arising out of or resulting from a result thereofbreach of Section 4.6(a) (Financial Statements; No Liabilities) or Section 4.12 (Absence of Certain Changes or Events).
(j) Notwithstanding anything herein to the contrary, no Shareholder Indemnified Parties, Noteholder Indemnified Parties or Company Indemnified Parties shall assert any claim for indemnification pursuant to Section 13.7(a) unless and until the aggregate amount of Damages that would otherwise be payable pursuant to this Article XIII with respect to all such claims exceeds $1,500,000, and then only to the extent of such excess.
Appears in 1 contract
Samples: Stock Purchase Agreement (Worthington Industries Inc)
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, the following limitations shall apply to indemnification claims under this Agreement:
(i) no individual claim (or series of related claims) for indemnification under Sections 6.1(a) or 6.2(a) shall be valid and assertable unless it is (or they are) for an amount in excess of $10,000;
(A) except with respect to breaches of the maximum Seller Fundamental Representations, the Seller shall be liable with respect to claims under Section 6.1(a) for only that portion of the aggregate Damages related to such claims (excluding any claims disallowed under Section 6.5(a)(i)), considered together, which exceeds $250,000 and (B) except with respect to breaches of the Buyer Fundamental Representations, the Buyer shall be liable with respect to claims under Section 6.2(a) for only that portion of the aggregate Damages related to such claims (excluding any claims disallowed under Section 6.5(a)(i)), considered together, which exceeds $250,000;
(iii) (A) the aggregate liability of the Seller or Purchaser under this Article VII for Losses indemnified indemnification claims under Section 7.2(a) or Section 7.3(a6.1(a) (other than in indemnification claims with respect of a breach of or inaccuracy in any Fundamental Representations or any to breaches of the representations and warranties contained in Section 3.5), as applicable, Seller Fundamental Representations) shall not exceed 20% an amount equal to twenty-five percent (25%) of the Aggregate Consideration Purchase Price and (iiB) the maximum aggregate liability of Seller or Purchaser the Buyer for Losses indemnified indemnification claims under this Article VII Section 6.2(a) (other than in indemnification claims with respect to breaches of Losses indemnified the Buyer Fundamental Representations) shall not exceed an amount equal to twenty-five percent (25%) of the Purchase Price; and
(iv) with respect to breaches of the Seller Fundamental Representations, the aggregate liability of the Seller for indemnification claims under Section 7.2(c)6.1(a) or Article VIII shall not exceed the Aggregate ConsiderationPurchase Price.
(b) Each Indemnified Party shall (and shall cause its Affiliates to) use commercially reasonable efforts (including by pursuing all legal rights and remedies available) in order to mitigate and minimize the Damages for which indemnification is contemplated by this ARTICLE VI, including pursuing commercially reasonable insurance claims with respect to any Damages or pursuing in a commercially reasonable manner any indemnification obligations of third parties with respect to any Damages that are or may be the subject of an indemnification claim hereunder.
(c) Payments The amount of Damages recoverable by an Indemnifying Indemnified Party pursuant under this ARTICLE VI with respect to Section 7.2 or Section 7.3 in respect of any Loss an indemnity claim shall be reduced by the amount of any amounts actually recovered payment received by such Indemnified Party (or an Affiliate thereof), with respect to the Damages to which such indemnity claim relates, from an insurance carrier or any other Person. If an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within thirty (30) days of receiving such insurance payment, an amount equal to the excess of (A) the amount previously received by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements this ARTICLE VI with respect to such Losses less claim plus the amount of any costs the insurance payments received, over (B) the amount of obtaining Damages with respect to such recoveryclaim which the Indemnified Party has become entitled to receive under this ARTICLE VI.
(d) The representations and warranties of the Parties, including any resulting increase in premium or other costs and the right of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to thereto, shall not be affected or deemed waived by reason of any Loss for which investigation made by or on behalf of such Indemnified Party (including by any of its Representatives) or by reason of the fact that such Indemnified Party or any of its Representatives knew or should have known that any such Person has been indemnified hereunderrepresentation or warranty is, then a refund equal to the aggregate amount was or might be inaccurate or by reason of the recovery shall be promptly made to the applicable Indemnifying such Indemnified Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect ’s waiver of any Third Party Claim for which indemnification hereunder is otherwise requiredcondition set forth in ARTICLE V, as the case may be.
(e) Each Indemnified Party shall takeThe Parties agree that where one and the same set of facts qualifies under more than one provision entitling the Buyer or the Seller to a claim or remedy under this Agreement, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation there shall be Losses indemnified hereunderonly one claim or remedy.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
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Limitations. (a) Subject to No claims for breaches of representations, warranties, covenants or obligations may be brought after the additional time limitations set forth below in this Section 7.5, Seller shall not be liable Article XI. Notwithstanding anything herein to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (contrary, other than in with respect to a claim arising out of fraud or willful misconduct, no party shall have any obligation to indemnify the other hereunder, unless (except with respect to a claim arising out of Section 12.1(a)(ii), or except with respect to a breach of or inaccuracy in any Fundamental Representations Representation, or any with respect to a Tax Claim) the amount of Damages sustained or incurred by such party with respect to all claims (with claims arising out of the representations and warranties contained in Section 3.5same event or set of factual circumstances being aggregated (a "Claim")) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregateexceeds $100,000, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, indemnified party shall be entitled to bring $100,000 plus any additional Damages sustained or incurred by such indemnified party with respect to all Claims by such indemnified party pursuant to this Agreement up to (but not in excess of) a maximum aggregate indemnity for such Damages of an amount equal to $1,000,000 (the "Cap"). For the avoidance of doubt, except with respect to a claim arising out of (a) Section 12.1(a)(ii); (b) fraud or willful misconduct, or with respect to a breach of; (c) any Fundamental Representation; or (d) with respect to a Tax Claim, the amount of Damages sustained or incurred with respect to any Claims, (i) once any indemnifying party has indemnified an indemnified party in an amount equal to the Cap, no further Claims for indemnification against such party shall be permitted, (ii) the total aggregate indemnification liability of Sellers collectively under this Agreement shall in no event exceed $1,000,000, and (iii) the total aggregate indemnification liability of Buyer under this Agreement shall in no event exceed $1,000,000. Notwithstanding the provisions of this Article XII, except with respect to a breach of any Fundamental Representation, or Tax Claims or in the case of fraud or willful misconduct, no indemnifying party shall have any indemnification obligations for Claims for Damages where such Damages are less than $5,000 per Claim (the "$5,000 Deductible") and in such case where such Damages exceed the $5,000 Deductible the indemnifying party shall only those Losses be obligated for the Damages on such Claim in excess of the $5,000 Deductible. Notwithstanding the provisions of this Article XII, except with respect to a breach of any Fundamental Representative or Tax Claims or in the case of fraud or willful misconduct, after the attainment of the $100,000 Threshold, no indemnifying party shall have any indemnification obligations for Claims where such Damages are less than $2,500 per Claim (the "$2,500 Deductible") and in such case where such Damages exceed the $2,500 Deductible the indemnifying party shall only be obligated for the Damages in excess of the $2,500 Deductible.
(b) Notwithstanding anything to The indemnification obligations of Sellers under Article XII and Section 13.1 shall be satisfied by the contrary contained in this Agreement, following means:
(i) first, recourse against such monies as are on deposit in the maximum aggregate liability Escrow Account; and
(ii) second, upon the exhaustion or unavailability of the Escrow Account, the exercise by any Buyer Indemnified Person of such Buyer Indemnified Person's indemnification rights through direct personal recourse against Sellers individually; provided, however, that (A) no Buyer Indemnified Person shall be entitled to indemnification by any Seller or Purchaser under pursuant to this Agreement unless notice of the indemnification claim is given to the Sellers prior to the date of termination of the applicable survival period specified in Article VII for Losses indemnified under Section 7.2(aVII, and (B) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or no Buyer Indemnified Person shall be entitled to receive payment pursuant to any of the representations and warranties contained rights set forth in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and subsection (ii) above unless and until all monies on deposit in the maximum aggregate liability Escrow Account have been paid out or released or are the subject of Seller pending or Purchaser unresolved claims for Losses indemnified payment of such monies pursuant to the exercise of rights under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationAgreement.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal Notwithstanding anything herein to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In contrary, in no event shall any Indemnifying Party an indemnifying party be liable to any Indemnified Party under this Article XIII for any punitive indirect, punitive, exemplary, special or treble consequential damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
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Limitations. The following provisions of this Section 11.4 shall limit the indemnification obligations hereunder:
(a) Subject to the additional limitations set forth below in this Section 7.5, Seller The Indemnifying Party shall not be liable for any Indemnified Costs pursuant to this Article XI unless a written claim for indemnification in accordance with Section 11.2 or Section 11.3 is given by the Indemnified Party to the Purchaser Indemnified Parties Indemnifying Party with respect thereto on or before 5:00 p.m., Houston, Texas time, on or prior to the date that is eighteen (18) months after of the Closing Date; provided, however, that written claims for indemnification under Section 7.2(a(i) and Purchaser shall not be liable to the Seller for Indemnified Parties for indemnification under Section 7.3(a) (other than in respect Costs arising out of a breach of any representation or inaccuracy in any Fundamental Representations or any of the representations and warranties warranty contained in Article III, Section 3.5) unless 4.1, Section 4.2, Section 4.3, Section 4.6, Section 4.7, Section 5.1, Section 5.2 and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration Section 5.5 (the “DeductibleFundamental Representations”) in the aggregate, in which case the Purchaser may be made at any time and (ii) for Indemnified Parties or the Seller Indemnified Parties, as applicable, shall Costs arising out of a breach of any covenant may be entitled to bring a claim for only those Losses in excess of the Deductiblemade at any time.
(b) Notwithstanding anything to the contrary contained Except as set forth in this Agreement, an Indemnified Party will not be entitled to any Indemnified Costs with respect to any individual Claim that does not equal or exceed 0.05% of the Purchase Price (i) the “Individual Indemnity Threshold”), and all such Claims that equal or exceed the Individual Indemnity Threshold must collectively also exceed the Indemnity Deductible, and thereafter, the Indemnified Party shall only be entitled to indemnity for the amount in excess of the Indemnity Deductible, subject to the limitations set forth in this Agreement. Except as set forth below, the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified the SN Parties under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, 11.1 shall not exceed 20% of the Aggregate Consideration and (ii) Indemnity Cap. Except as set forth below, the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified Buyer under Section 7.2(c)) or Article VIII 11.1 shall not exceed the Aggregate ConsiderationIndemnity Cap.
(c) Payments by an Indemnifying Party pursuant The limitations set forth above in this Section 11.4 shall not apply to any claim for indemnification under Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party 11.1 with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to breach of (i) the aggregate amount of Fundamental Representations or (ii) the recovery shall be promptly made to the applicable Indemnifying Partyindemnification obligations set forth in this Article XI.
(d) In no event shall any Indemnifying Party be liable With respect to any Buyer Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim Costs incurred by the Company for which indemnification hereunder by the SN Parties is otherwise requiredrequired hereunder, the SN Parties shall be obligated to indemnify the Buyer Indemnified Parties only for such Buyer Indemnified Costs only to the extent of Buyer’s 50% responsibility for such Buyer Indemnified Costs (with the other 50% of such Buyer Indemnified Costs being the obligation of the LLC Agreement’s counterparty). With respect to Seller Indemnified Costs incurred by the Company for which indemnification by Buyer is required hereunder, Buyer shall be obligated to indemnify the Seller Indemnified Parties only for such Seller Indemnified Costs only to the extent of Seller’s 50% responsibility for such Seller Indemnified Costs (with the other 50% of such Seller Indemnified Costs being the obligation of LLC Agreement’s counterparty).
(e) Each Party acknowledges and agrees that, after the Closing Date, except as otherwise set forth in Section 6.4 and Article XII, Buyer’s and the other Buyer Indemnified Party Parties’ and the SN Parties’ and the other Seller Indemnified Parties’ sole and exclusive remedy with respect to the Indemnified Costs shall takebe in accordance with, and cause its Affiliates to takelimited by, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunderthe provisions set forth in this Article XI.
(f) All For purposes of determining any Losses indemnified pursuant resulting from a breach of any of the SN Parties’ representations and warranties contained in Article III or Article IV for which Buyer Indemnified Parties would be entitled to this Agreement indemnification, any dollar or materiality qualifications in the SN Parties’ representations and warranties shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)disregarded.
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Limitations. (ai) Subject No amount shall be payable to the additional limitations set forth below Stockholders in this satisfaction of claims for indemnification pursuant to Section 7.512.3(a)(i) unless and until the aggregate amount of all Losses of the Stockholders arising therefrom exceeds the Threshold, Seller at which time Parent shall indemnify the Stockholders for the full amount of all such Losses from and including the first dollar of all such Losses up to an amount equal to the Cap; provided that (A) the Threshold shall not apply with respect to any Losses resulting from, arising out of or relating to breaches of representations and warranties contained in Sections 7.1 (Organization), 7.2 (Authorization), 7.3 (Capitalization) or 7.8 (No Brokers) (collectively, the “Parent Fundamental Representations”), and (B) none of such Losses shall count towards the satisfaction of the Threshold.
(ii) The aggregate amount of all payments made by Parent in satisfaction of claims for indemnification pursuant to Section 12.3(a)(i) shall not exceed the Cap; provided that (A) no payments made by Parent with respect to Losses resulting from, arising out of or relating to breaches of any of the Parent Fundamental Representations shall count towards the Cap and (B) in no event shall the aggregate amount of all payments made by Parent in satisfaction of claims for indemnification pursuant to Section 12.3(a)(i) exceed the Cap.
(iii) Following the Closing, no Stockholder Indemnified Party shall have any right to seek contribution from the Surviving Company (or any Affiliate thereof) with respect to any indemnification claim of a Parent Indemnified Party against any Stockholder Indemnified Party hereunder.
(iv) Notwithstanding anything to the contrary herein, Parent shall not be liable to the Purchaser Stockholder Indemnified Parties for indemnification Losses under Section 7.2(a) and Purchaser shall not be liable 12.3 that constitute consequential, special, punitive or exemplary damages (in each case, except to the Seller Indemnified Parties for indemnification under Section 7.3(aextent constituting Third Party Claims) (claimed by such other than in respect of a party or parties, as the case may be, resulting from such first party’s breach of its representations, warranties or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified covenants hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 1 contract
Samples: Merger Agreement (Rentech Inc /Co/)
Limitations. (a) Threshold. Subject to Section 9.3(b), the additional limitations set forth below in this Section 7.5, Seller Sellers shall not be liable required to make any indemnification payment (including, for the Purchaser Indemnified Parties avoidance of doubt, any payment by the Escrow Agent to an Indemnitee from the Escrow Fund in accordance with Section 9.6 and the Escrow Agreement) pursuant to Section 9.2(a)(i) or Section 9.2(a)(ii) for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a any breach of or inaccuracy in any Fundamental Representations General Company Representation or any Company Compliance Representation or pursuant to Section 9.2(a)(vi) (with respect to breaches of the or inaccuracies in representations and warranties contained in Section 3.5) unless and until to which the Purchaser Indemnified Parties or the Seller Indemnified Parties, as Threshold Amount is applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the Deductible.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a9.2(a)(vii) (other than with respect to Legal Proceedings identified on Part 2.14(c) or Part 2.19(a)-1 of the Company Disclosure Schedule that are not Specified Tax Proceedings) until such time as the total amount of all Damages that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise directly or indirectly become subject, in respect of a connection with any breach of or inaccuracy in any Fundamental of the General Company Representations or any the Company Compliance Representations or in connection with the matters referred to in Section 9.2(a)(vi) (with respect to breaches of the or inaccuracies in representations and warranties contained in to which the Threshold Amount is applicable) or Section 3.5), as applicable, shall not exceed 20% 9.2(a)(vii) (with respect to Legal Proceedings identified on Part 2.14(c) or Part 2.19(a)-1 of the Aggregate Consideration Company Disclosure Schedule that are not Specified Tax Proceedings) exceeds $60,000,000 in the aggregate for all such Damages (the “Threshold Amount”). If the total amount of such Damages exceeds the Threshold Amount, then: (i) with respect to the first $60,000,000 of such aggregate Damages, the Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for $30,000,000 of such Damages; and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to the portion of such Losses less aggregate Damages exceeding the amount of any costs of obtaining such recoveryThreshold Amount, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery Indemnitees shall be promptly made entitled to be indemnified against and compensated and reimbursed for the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the entire amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof)Damages.
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Limitations. (a) Subject Notwithstanding anything contained herein to the additional limitations set forth below contrary, Seller’s aggregate liability in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties respect of any obligation for indemnification Losses under Section 7.2(a) and Purchaser (except in the case of Fraud), shall not be liable exceed an amount equal to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any amount of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses in excess of the DeductiblePurchase Price.
(b) Notwithstanding anything contained herein to the contrary contained in this Agreementcontrary, (i) the maximum Purchaser’s aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than in respect of a breach any obligation for Losses under Section 7.2(b) (except in the case of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5Fraud), as applicable, shall not exceed 20% an amount equal to the amount of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate ConsiderationPurchase Price.
(c) Payments The amount of any indemnification payable under this Article VII in respect of a claim for indemnification pursuant to Section 7.2 shall be reduced by an amount equal to the proceeds actually received by a Purchaser Indemnitee or Wafra Indemnitee, as applicable, under any insurance policy or from any third party in respect of such claim less all actual and reasonable out-of-pocket costs and expenses incurred by such Purchaser Indemnitee or Wafra Indemnitee in connection with obtaining such insurance proceeds or third-party recovery (including reasonable and documented out-of-pocket attorneys’ fees, any deductible, any retention, any retroactive premium adjustment on the account of, or arising from, such claim or Losses). Each Purchaser Indemnitee and Wafra Indemnitee shall use its, his or her commercially reasonable efforts to pursue any insurance recovery or third-party recovery available to it with respect to any Loss for which such Purchaser Indemnitee or Wafra Indemnitee seeks indemnification pursuant to this Article VII (including during the period following any payment to such Purchaser Indemnitee or Wafra Indemnitee in respect of such indemnification); provided, that the possibility that insurance proceeds may be realized by such Purchaser Indemnitee or Wafra Indemnitee shall not delay payment or indemnification of such Losses by the party against whom indemnification is sought pursuant to this Article VII. If any Person has paid an amount in discharge of any Indemnity Claim and the indemnified Person recovers from an insurance policy or from a third party a sum which indemnifies or compensates such Person in respect of the Losses which are the subject matter of such claim, such Person shall pay to the Indemnifying Party as soon as practicable after receipt thereof an amount equal to the lower of (i) the amount actually received by such Person from the Indemnifying Party in respect of such claim and (ii) any sum recovered from the third party, in each case, less all reasonable out-of-pocket costs and expenses incurred by such Purchaser Indemnitee or Wafra Indemnitee in connection with obtaining such insurance proceeds or third-party recovery and any Tax suffered thereon.
(d) No Person shall be entitled to recover from an Indemnifying Party or any Affiliate thereof more than once with respect to the same Loss (i.e. no double-counting). For the avoidance of doubt, claims for indemnification pursuant to Section 7.2 or Section 7.3 in respect of any Loss may be made based upon a liability which is contingent at the time such claim is made; provided, however, that no Person shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect entitled to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party recover with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Partyclaim unless and until such liability becomes an actual liability.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereof).
Appears in 1 contract
Samples: Purchase and Sale Agreement (DigitalBridge Group, Inc.)
Limitations. (a) Subject Except in the case of fraud, the Parent Indemnified Parties, as a group, may not recover any Losses pursuant to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser Indemnified Parties for an indemnification claim under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) 8.02 unless and until the Purchaser Indemnified Parties or the Seller Parent Indemnified Parties, as applicablea group, shall have incurred paid at least $50,000 in Losses in excess of 0.5% of the Aggregate Consideration aggregate (the “DeductibleThreshold Amount”) in the aggregate), in which case the Purchaser Parent Indemnified Parties or shall be entitled to recover all such Losses in excess of such Threshold Amount.
(b) Except in the Seller case of fraud, the Parent Indemnified Parties’ sole and exclusive source of recovery for indemnification claims under Section 8.02 shall (i) first, be against any unvested Second Tranche Shares (valued at the Indemnification Per Share Valuation), as applicableset forth in Section 8.05, and second, be recourse against the Edge Note and (ii) be limited, in the aggregate, to $2,000,000.
(c) In the case of any claim of fraud that is not limited to recourse as set forth in Section 8.04(b), subject to Section 8.06, the Parent Indemnified Parties shall be entitled to bring a claim indemnification claims against CBD Holding for only those Losses the portion of any Loss for which indemnification is not satisfied by the recourse provided for in excess Section 8.04(b) above (an “Excess Loss”), and CBD Holding will be liable for the Excess Losses, and CBD Holding will be liable in respect of such indemnification claim;provided, however, that liability of CBD Holding for all claims of fraud and indemnification claims under Section 8.02 shall be limited, in the aggregate, to the aggregate value of the DeductibleParent Payment Shares actually received by CBD Holding pursuant to Section 2.06 (it being understood that, for these purposes, each Parent Payment Share shall be valued at the Indemnification Per Share Valuation);provided, further, however, that that the foregoing shall not limit the liability of a Company Member who has committed fraud with respect to such fraud.
(bd) Notwithstanding anything Except in the case of fraud, the Company Member Indemnified Parties, as a group, may not recover any Losses pursuant to an indemnification claim under Section 8.03 unless and until the Company Member Indemnified Parties, as a group, shall have paid Losses in the aggregate that exceed the Threshold Amount, in which case the Company Member Indemnified Parties shall be entitled to recover all such Losses, including such amounts as comprised any portion of such Threshold Amount;provided, however, that no indemnification claim asserting Losses (including any Losses arising out of the same or any series of related facts and circumstances) in an amount equal to or less than $50,000 will count toward the calculation of the Threshold Amount.
(e) Except in the case of fraud, the liability of Parent for indemnification claims under Section 8.03 shall be limited, in the aggregate, to $2,000,000.
(f) In the case of indemnification claims for cases of fraud, the aggregate liability of Parent for such indemnification claims shall be limited to the contrary contained in this Agreementaggregate value of the Parent Payment Shares actually received by the Company Members pursuant to Section 2.06, (it being understood that, for these purposes, each Parent Payment Share shall be valued at the Indemnification Per Share Valuation.
(g) Except for a claim of fraud, (i) the maximum aggregate liability of Seller no Indemnified Party shall be required to show reliance on any representation, warranty, certificate or Purchaser under this Article VII other agreement in order for Losses indemnified under Section 7.2(a) such Indemnified Party to be entitled to indemnification, compensation or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5)reimbursement hereunder, as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) no Indemnified Party shall be permitted to assert, and no Indemnifying Party shall have any liability for, any indemnification claim asserting Losses (including any Losses arising out of the maximum aggregate liability same or any series of Seller related facts and circumstances) in an amount equal to or Purchaser for Losses indemnified under this Article VII (other less than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration$100,000.
(ch) Payments by an Indemnifying Party pursuant No Company Member shall have any right of contribution, indemnification or right of advancement from the Surviving Company, Surviving LLC or Parent with respect to Section 7.2 or Section 7.3 in respect of any Loss for which the Parent Indemnified Parties is entitled to indemnification under Section 8.02.
(i) The obligations of the Indemnifying Parties to indemnify any Indemnified Party for any Loss hereunder shall be reduced by the amount of any amounts actually recovered by the Indemnified Party under insurance policiesproceeds, indemnities indemnification payments, contribution payments, reimbursements or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive or treble damages, other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage payments actually received by the Indemnified Party (the amount Parties in respect of such proceeds determined Losses or any of the events or circumstances giving rise to such Losses, in each case, net of all any costs of recovery thereofor expenses incurred in obtaining such insurance, deductibles indemnification, contribution or retentions thereunder and reimbursement, including any increases in insurance premiums as a result thereofresulting from any insurance recovery), and, to the extent any such amounts are received after satisfaction of an indemnification claim against the Indemnifying Parties, the Indemnified Party shall promptly pay or cause to be paid to the Indemnifying Parties the aggregate amount so received (each Company Member being entitled to their Pro Rata Portion of such amounts).
(j) Notwithstanding anything to the contrary set forth herein, no Indemnified Party shall be entitled to indemnification for any Losses based on or arising out of the same set of facts or circumstances under more than one claim for indemnification hereunder, regardless of whether such facts or circumstances would give rise to multiple claims for indemnification hereunder.
Appears in 1 contract
Limitations. (a) Subject to the additional limitations set forth below in this Section 7.5, Seller shall not be liable to the Purchaser In any case where an Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than Party recovers from third Persons any amount in respect of a breach of or inaccuracy in any Fundamental Representations or any matter with respect to which an Indemnitor has indemnified it pursuant to this Article XI, such Indemnified Party shall promptly pay over to the Indemnitor the amount so recovered (after deducting therefrom the full amount of the representations and warranties contained expenses incurred by it in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Partiesprocuring such recovery), as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to bring a claim for only those Losses but not in excess of the Deductibleamount by which any amount previously so paid by the Indemnitor to or on behalf of the Indemnified Party in respect of such matter would have been reduced if such recovery had been taken into account.
(b) Notwithstanding anything If Aon is conducting any defense against a third Person claim for which a Buyer Group Member has sought indemnification pursuant to the contrary contained Section 11.1(a), expenses incurred by Aon in this Agreementconnection therewith, (i) including legal costs and expenses, shall constitute Expenses for purposes of determining the maximum aggregate liability of Seller or Purchaser under this Article VII for Losses indemnified under amount to be paid by Aon pursuant to Section 7.2(a) or Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.511.1(a), as applicable, shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser for Losses indemnified under this Article VII (other than in respect of Losses indemnified under Section 7.2(c)) or Article VIII shall not exceed the Aggregate Consideration.
(c) Payments by an Indemnifying Party pursuant to Section 7.2 Aon shall not have any liability for any inaccuracy in or Section 7.3 in respect breach of any Loss shall be reduced representation or warranty by the amount Aon if Xxxxxx X. Xx Xxxxx had actual knowledge on or before date of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount this Agreement of the recovery shall be promptly made to the applicable Indemnifying Partyfacts as a result of which such representation or warranty was inaccurate or breached.
(d) In no event Except for remedies that cannot be waived as a matter of law and equitable remedies (including specific performance), if the Closing occurs, this Article XI shall be the exclusive remedy for breaches of this Agreement (including any Indemnifying Party be liable covenant, obligation, representation or warranty contained in this Agreement or in any certificate delivered pursuant to any Indemnified Party for any punitive this Agreement) or treble damages, other than indemnification for amounts paid or payable to third parties otherwise in respect of any Third Party Claim for which indemnification hereunder is otherwise requiredthe sale of the Shares contemplated hereby.
(e) Each Indemnified Party Except for matters under Sections 11.1(a)(iii) and (iv) and Sections 11.2(a)(iii) and (iv), in no event shall takeany party be liable for any special, and cause its Affiliates to takeincidental, consequential (including loss of revenues or profits), exemplary or punitive damages arising under any legal or equitable theory or arising under or in connection with this Agreement, all commercially reasonable steps to mitigate of which are hereby excluded by agreement of the parties regardless of whether or not any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant party to this Agreement shall be net has been advised of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount possibility of such proceeds determined net damages. For the avoidance of all costs of recovery thereofdoubt, deductibles with respect to matters under Sections 11.1(a)(iii) and (iv) and Sections 11.2(a)(iii) and (iv), Losses and Expenses shall include special, incidental, consequential, exemplary or retentions thereunder and increases in premiums as a result thereof).punitive
Appears in 1 contract
Samples: Purchase Agreement (Aon Corp)
Limitations. (a) Subject The indemnifications provided in this Article XIII shall be the sole and exclusive remedy of the parties to this Agreement with respect to the additional limitations transactions contemplated by this Agreement regardless of the legal theory (whether under contract, in tort, under applicable securities laws or otherwise) other than as specifically provided with respect to adjustment of the Consideration (in Article III and Sections 7.11(a) and 8.2(b)) and with respect to the matters set forth below in Section 8.3, which provisions shall be the exclusive remedies for the matters set forth therein; provided, however, that in no event shall this Section 7.5provision limit any party's right to specific performance, Seller injunctive relief or any other equitable remedy otherwise available to such party. In no event shall not be liable to the any Purchaser Indemnified Parties for indemnification under Section 7.2(a) and Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) (other than in respect of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5) unless and until the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, have incurred Losses in excess of 0.5% of the Aggregate Consideration (the “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, shall Party be entitled to bring a claim recover for only those Losses any Loss under Section 13.1 to the extent that such Loss has been reflected in excess of the DeductibleBook Value Adjustment or in the Annual Financial Statements.
(b) Notwithstanding anything in this Agreement to the contrary contained in this Agreementcontrary, (i) the maximum aggregate liability of Seller or a Purchaser Indemnified Party shall be entitled to indemnification under this Article VII Section 13.1 for Losses indemnified under Section 7.2(a) or Section 7.3(a) (other than only to the extent that the aggregate amount of all Losses exceeds $100,000 and then only for Losses in respect excess of a breach of or inaccuracy in any Fundamental Representations or any of the representations and warranties contained in Section 3.5)$100,000, as applicable, except that such limitation shall not exceed 20% of the Aggregate Consideration and (ii) the maximum aggregate liability of Seller or Purchaser apply to indemnification for Losses indemnified under this Article VII clause (other than in respect h) of Section 13.1 and such Losses indemnified under Section 7.2(c)clause (h) or Article VIII shall not exceed count towards amounts referred to in the Aggregate Considerationfirst part of this Section 13.4(b).
(c) Payments by an Indemnifying Party pursuant In no event shall the Companies' cumulative liability to indemnify for Losses under Section 7.2 13.1 (other than Losses relating to breach of (or misrepresentation under) any of the Company Transactional Representations or failure to comply with the conditions of the Escrow Agreement) exceed $5,500,000. In no event shall the Companies' cumulative liability to indemnify for Losses under Section 7.3 in respect 13.1 relating to breach of (or misrepresentation under) any Loss shall be reduced by of the Company Transactional Representations (other than Section 5.25 (Investment Representations)) or for failure to comply with the conditions of the Escrow Agreement exceed the amount of any amounts actually recovered by the Indemnified Party Purchase Price. In no event shall the Companies' cumulative liability to indemnify for Losses under insurance policies, indemnities Section 13.1 relating to breach of (or other reimbursement arrangements with respect to such Losses misrepresentation under) Section 5.25 (Investment Representations) exceed $14,000,000 less the amount of any costs reduction of obtaining the Purchase Price allocated to Basic Shares or Additional Shares pursuant to Section 8.2(b) hereof (such recovery, including any resulting increase in premium or other costs of insurance. In the event that an insurance or other recovery is made by any Indemnified Party with respect reduction to any Loss for which any such Person has been indemnified hereunder, then a refund be equal to the aggregate amount total number of Basic Shares and Additional Shares not delivered pursuant to that Section multiplied by the recovery shall be promptly made Issue Price), which reduction is not subsequently (i.e., within the 120 days following the Closing Date) restored pursuant to the applicable Indemnifying Partythat Section.
(d) In no event shall any Indemnifying Party be liable the cumulative liability of Purchaser and Parent to any Indemnified Party indemnify for any punitive or treble damages, Losses under Section 13.2 (other than indemnification for amounts paid Losses relating to: (i) the failure by Purchaser or payable Parent to third parties in respect pay any portion of the Purchase Price as and when due; (ii) failure by Purchaser or Parent to comply with the conditions of the Escrow Agreement; or (iii) breach of (or misrepresentation under) any of the Purchaser Transactional Representations) exceed $10,250,000 less the amount of any Third Party Claim reduction of the Purchase Price allocated to Basic Shares pursuant to Section 8.2(b) hereof (such reduction to be equal to the total number of Basic Shares not delivered pursuant to that Section multiplied by the Issue Price), which reduction is not subsequently (i.e., within the 120 days following the Closing Date) restored pursuant to that Section. In no event shall the cumulative liability of Purchaser and Parent to indemnify for which indemnification hereunder is otherwise requiredLosses under Section 13.2 relating to: (i) the failure by Purchaser or Parent to pay any portion of the Purchase Price as and when due; (ii) failure by Purchaser or Parent to comply with the conditions of the Escrow Agreement; or (iii) breach of (or misrepresentation under) any of the Purchaser Transactional Representations exceed the amount of the Purchase Price.
(e) Each Indemnified Party shall takeAnything in Sections 13.4(c) and (d) to the contrary notwithstanding, each limitation on indemnification set forth therein is intended to be reduced by the aggregate amount of all other payments actually and previously made in respect of an obligation of the applicable indemnitor (i.e., the Companies, under Section 13.4(c), and cause its Affiliates Parent and Purchaser, under Section 13.4(d)), whether subject to takesuch limitation or otherwise. For purposes of clarity, all commercially reasonable steps to mitigate and by means of example only, the result of this provision could (and is intended to) be that payment of a $10,000,000 indemnity under the second sentence of Section 13.4(c) would preclude any Loss upon becoming aware indemnity under the first sentence of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that any costs of such mitigation shall be Losses indemnified hereunder.
(f) All Losses indemnified pursuant to this Agreement shall be net of the proceeds of any third-party insurance coverage actually received by the Indemnified Party (the amount of such proceeds determined net of all costs of recovery thereof, deductibles or retentions thereunder and increases in premiums as a result thereofSection 13.4(c).
Appears in 1 contract
